Legal blog: Acting on sexual harassment

The media spotlight is shining on sexual harassment, with scores of allegations being made against famous faces on both sides of the Atlantic. The response has been huge, with social media awash with literally thousands of tales of sexual harassment (many in the workplace) using the hashtag #MeToo.

There is no indication that harassment is limited to particular industries, but it is clear that women seem to suffer sexual harassment more than men. An October 2017 survey by the BBC indicated that 53% of women and 20% of men in the UK had experienced some form of sexual harassment at work or a place of study. Most incidents went unreported.  

Male-dominated industries such as construction need to be particularly careful about the problem of sexual harassment. Given that employers are potentially liable for the acts of their employees (as well as third parties such as customers and contractors), it is crucial that they take positive steps to deal with it.

What is sexual harassment?

Sexual harassment is defined in the Equality Act 2010 as unwanted conduct relating to sex or of a sexual nature which has the purpose or effect of violating the individual’s dignity, or which creates an intimidating, hostile, degrading, humiliating or offensive environment for them. Harassment also occurs where the individual rejects the unwanted conduct and is treated less favourably as a result.  

The types of harassment are therefore wide-ranging, covering “banter” and  jokes, unwelcome physical contact and advances, displaying photos of a sexual nature and sending sexually explicit emails. 

To qualify as harrassment, the harasser does not need to mean to cause offence, and a one-off act can fall foul of the law. The victim does not even need to have made the perpetrator aware that the conduct was unwanted – although a tribunal will take into account the victim’s perception, the circumstances and whether it was reasonable for the conduct to have had the effect complained of.  

What should employers do?

As mentioned, employers can be liable for the acts of their employees and potentially those of third parties and contractors, too. It is not always possible to prevent harassment, but if an employer can show that it took all reasonable steps (which in the case of conduct by third parties means all reasonably practical steps) to prevent the harassment from occurring, this will provide it with a defence. 

It is important to note that these steps need to have been taken before the harassment takes place. 

Examples of measures that employers should take are:

• Implementing and publicising appropriate policies sanctioned at the highest level within the organisation.  These include an equal opportunities policy and an anti-harassment and bullying policy. Employees should be encouraged to raise concerns and given opportunities to do so – be this in supervision sessions or via a formal grievance process.
• Ensuring managers and supervisors are trained and know how to spot and deal with harassment issues, including dealing with complaints effectively and being aware of the dangers of “banter”.  Quite often training sessions can be an eye-opener for managers.
• Leading from the top and cultivating the right culture – if senior staff are seen to uphold these values, this will hopefully filter down through the workforce. 

Responding to complaints of sexual harassment

Employers should respond to sexual harassment complaints quickly and sensitively. This will normally involve:

• Investigating the complaint. The investigation needs to be independent and thorough, and careful consideration should be given to whether the alleged perpetrator should be suspended.  
• If the complaint is justified, the perpetrator should be invited to a disciplinary hearing. It is important that a fair procedure is followed, with confidentiality preserved as far as possible. 

Harassment complaints can present practical difficulties, as it may be one person’s word against another. This does not make it impossible to find in favour of the complainant – the manager needs to weigh up the evidence and come to a conclusion based on the balance of probabilities.

It is important to support both the victim and the perpetrator throughout the process (bearing in mind these situations are extremely sensitive) and not to prejudge the outcome. If anyone retaliates against an individual for raising a complaint of harassment, this in itself could give rise to a claim and should be treated as a potential disciplinary offence.

The future

The flurry of allegations against celebrities, together with the recent abolition of employment tribunal fees, means that an explosion of sexual harassment grievances and claims could be on the horizon. The construction industry may have particular exposure given its gender imbalance. From the perspective of employers it would be wise to ensure that the right policies, procedures and (importantly) culture are in place to prevent claims arising in the first place – or, failing that, to have the best possible chance of defending them.

Keely Rushmore is a senior associate in the employment law team at SA Law