Workplace Sexual Harassment: Has your business “taken all reasonable steps”?

On the back of the #MeToo movement we have seen a large amount of publicity in the UK including allegations of inappropriate behaviour against a number of MP’s, the former Government Minister, Sir Philip Green and more recently the British Army. The #MeToo movement appears to have permeated into the workplace and has resulted in a number of high profile cases of sexual harassment allegations. It would therefore appear that the #MeToo movement has empowered employees and given them the confidence to come forward with information surrounding sexual harassment in the workplace whereas historically they may not have raised the issues for fear of recrimination. In some instances employers have been caught short whereby they are not able to demonstrate that they have taken all reasonable steps to prevent the harassment from occurring.

Allegations of sexual harassment in the workplace involve extremely complex issues and can result in significant reputational damage for employers as well as risk of litigation which can be brought both against the company and the alleged harasser. Successful claims brought in the Employment Tribunal may result in substantial damages being awarded.  Employers need to ensure that they follow the appropriate legal process including carrying out a detailed and thorough investigation into the allegation/s and where necessary invoking their disciplinary procedure.

It’s advisable that companies ensure robust policies and procedures are put in place or are revised, alongside comprehensive training for all staff including those at management level who may be required to deal with complaints of sexual harassment in the workplace. Without such policies, procedures and training in place, alleged harassers may argue that they were not clear as to the boundaries to what constitutes appropriate workplace conduct and this may in turn, make it difficult for companies to dismiss employees where appropriate. Businesses failing to address sexual harassment in the workplace before such issues arise also leave themselves in a vulnerable position whereby they may be found to be vicariously liable for acts of their employees, even where they do not know of such acts having occurred.

The Equality and Human Rights Commission (EHRC) have identified 3 potential recommendations in relation to proposed changes to the legal position concerning sexual harassment in the workplace. To create a mandatory statutory duty on employers to take steps to prevent sexual harassment in the workplace and protect their employees from it, a statutory code which outlines the mandatory steps and the appropriate best practice and looking at the appropriateness of non-disclosure agreements (NDA’s) and potentially looking at legislative ban on NDA’s. The Government is considering its response in relation to the Women and Equalities Committees enquiry and it is expected that the Government will welcome the proposed recommendations. If there wasn’t good enough reason to strengthen existing policies and procedures and introduce regular training on this topic, then the fact that we anticipate a change in the law in this area should.

Training is one of the pivotal aspects of the ‘reasonable steps defence’ that companies can put forward in response to sexual harassment claims. It is therefore vital that companies have robust policies in place in addition to educating their staff to understand what constitutes sexual harassment and also the consequences that they may face if they are found to have sexually harassed in the workplace. We can provide hosted training for Senior Managers or in-house training for your entire workforce – we’d be happy to discuss your requirements. For further information contact Sarah Collier, Head of Employment on 01204 527777 or