Here’s my take on one of the most covered employment related news topics this year, and answers to some key questions.
With the amount of press coverage given to the behaviour of politicians, aid workers, business leaders, film producers, and large companies such as #Google and #Uber involved with allegations in the last year, you could be forgiven for thinking that #sexualharassment in the workplace has increased.
It probably hasn’t, but there is little doubt that there has been increased reporting as various campaigns (#MeToo, #TimesUp etc) have drawn attention to this issue. Despite all this attention, only 30% of respondents to a recent ACAS Survey thought that sexual harassment had decreased in the last five years and only 24% thought that recent international media coverage had improved their workplace culture.
We appear to have an endemic problem which in the past has not been reported. In their ‘Ending sexual harassment at work report’ (2018) the Equality and Human Rights Commission found that approximately 50% of respondents had not reported harassment due to fears of consequent victimisation and a feeling that senior management was ‘untouchable’.
OK, so that’s the big picture, but what are the everyday questions that key decision makers in businesses need to understand.
What is sexual harassment?
It’s a form of discrimination, and there is a statutory definition found in the Equality Act 2010. ACAS summarises it like this:-
‘Unwanted conduct related to ‘sex’ (editor), which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual’.
The definition includes behaviour that might not be specifically aimed at one individual (for instance circulating offensive material of a sexual nature) and treating someone less favourably because they either accepted or rejected conduct of a sexual nature (someone gets overlooked for promotion because they rejected a sexual advance).
What is the difference between harassment and bullying?
People often claim these two things together. There is a distinction, but it is quite a fine one!
Bullying is behaviour that has similar effects as harassment but is not on the basis of sex or any other characteristic that is protected by equality legislation. It usually involves an abuse or misuse of power.
Bullying is not discrimination, but an aggrieved employee can resign and claim constructive dismissal, and if their health suffers, for instance because of persistent intimidation, they may well have a personal injury claim on the basis of the employer failing in their health and safety ‘duty of care’.
On the other hand, someone who suffers harassment can go to an Employment Tribunal and claim discrimination, for which compensation is uncapped.
Is it my responsibility to take action even if nobody is complaining?
Employees may be too scared to report this type of behaviour, but this does not mean you should ignore it if you know it is going on.
It will often be affecting performance, productivity, absence from work, and unnecessary staff turnover. It will be costing your business money, not to mention huge reputational risk.
The least you should do is investigate.
Do I need an anti-bullying and harassment policy?
If you have heard one of my #ceo briefings, you’ll know that I am not a great fan of solving things via a policy. It rarely works.
Formal or informal (a quiet word) education and training and setting an example yourself, are likely to be more effective.
There is a big ‘however’ here though.
A policy (and the best will give examples so that employees understand the types of behaviours that are unacceptable) that is effectively reinforced may well prevent bullying and harassment, and if it doesn’t, it may still lead a Tribunal to conclude that an employer had taken reasonable steps to prevent these behaviours and thus not be liable.
If you are a small organisation without a policy, a Tribunal would take the size and resources of your organisation into account and is very unlikely to penalise you for not having one.
In summary, my advice would be if you have a staff handbook, then add a policy if you don’t already have one. If you don’t have a staff handbook, don’t get one just for this reason.
Is telling someone what to do bullying or harassment?
Employees often claim bullying or harassment when they are told to do something they don’t like doing, or they are given critical feedback.
If you are asking someone to do something, and you would not ask someone of the opposite sex to do that, it may amount to harassment. Similarly, if the manner you speak to someone is different because of their sex.
Ordinarily, just telling someone what to do or giving critical feedback is well within the expectations of an employment relationship, and I would make this clear in any policy with a statement such as:-
‘Legitimate, reasonable and constructive criticism of your performance or behaviour, or reasonable instructions given to you in the course of your employment, will not amount to bullying on their own’.
Stories of sexual misconduct have caused considerable political embarrassment this year, and it is a shame that it takes this to encourage further action, although whilst the Government is otherwise distracted (sorry Bob – Bored of Brexit – I had to mention it!) we may see nothing more than promises.
There has been talk of :-
- creating a mandatory duty to prevent sexual harassment (which would presumably require an employer to do something about an incident even if the victim did not want it pursued),
- a ‘code of practice’ similar to those we have for discipline or flexible working,
- the reinstatement of protection against third party harassment (various surveys have estimated that 15 to 20% of sexual harassment has been perpetrated by customers or clients)
- extending Employment Tribunal claim limits from 3 to 6 months for sexual harassment cases,
- banning redundancy during pregnancy, maternity leave and for six months afterwards (in 2015 54,000 women lost their jobs as a result of pregnancy discrimination) as is already the case in Germany,
- extending protection from sexual harassment to volunteers and interns, and
- making ‘gagging’ clauses illegal in respect of sexual harassment.
The moral here is not to wait for legislation.
Take some of the steps outlined above. Investigate concerns, set an example yourself, have a preventative quite word where necessary, and get and promote a policy (surprise, surprise, we can provide one if you want).
Ken Allison | 28 November 2018 | Paradigm Partners | www.paradigmpartners.co.uk
Ken Allison is an engaging trainer and speaker who manages to make his topics, on handling employment law related people issues and other HR stuff, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.
Through his firm’s ‘ExecutiveHR’ service, Ken also provides telephone based support services to businesses throughout the UK.
This blog is not a substitute for taking legal advice!