The time is up to ignore Sexual Harassment in the Workplace

In response to the sweeping #metoo movement, Time’s Up has brought sexual misconduct in the workplace to the attention of the world. The organisation strives to change the workplace, tackling issues such as sexual assault, harassment and inequality to bring empowerment to women. It was founded in January 2018 in response to sexual misconduct allegations in the film industry. They have established a legal defence fund of $13m and organised successful campaigns such as the “red carpet blackout” at the 2018 Golden Globes.

The media focus is on the individual perpetrators but there is no reason for them not to focus on the employer itself. According to the Trades Union Congress, over 50% of workplaces have an issue with sexual harassment. Allegations can see a significant amount of reputational damage, even before they are proven (or not proven) in an Employment Tribunal. If an employer is not deterring sexual harassment from happening in the workplace, they could also find themselves liable in a successful claim. In order to avoid liability, an employer must successfully argue it has taken all reasonable steps to prevent the harassment from occurring. Following the safeguarding scandals in the charity sector, the Commission issued two regulatory alerts and updated its safeguarding strategy. One of the notable developments was its extension of the ‘traditional’ meaning of safeguarding beyond a charity’s duty to protect its beneficiaries to safeguarding anyone who comes into contact with it including beneficiaries, staff and volunteers.

What is sexual harassment?

Sexual harassment is a form of discrimination and is found under s.26 (2) in the Equality Act 2010. According to the legal definition, sexual harassment occurs “where A engages in unwanted conduct of a sexual nature, and the conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B”.

This is a wide definition and any unwanted verbal, non-verbal or physical conduct of a sexual nature can be deemed to be sexual harassment.

Case law has established that:

• There is no need for B to make it clear that A’s conduct is unwanted in order for it to constitute harassment.
• A single incident can be enough to constitute harassment.
• Putting up with conduct for years does not mean it cannot be unwanted.
• The fact the employee initiated ‘banter’ as a coping strategy is not a defence to sexual harassment.
• An employee may succeed in a claim for sexual harassment where a consensual relationship ends and the other party’s conduct becomes unwanted.

For the purposes of sexual harassment anything done by an employee in the course of their employment is treated as having been done by the employer and it is not relevant if the conduct is done with the employer’s knowledge or approval. This can even include events outside of the office, for example, staff parties, conferences and travelling. Similarly, a service provider will be responsible for acts of sexual harassment against service users unless it can argue it has taken all reasonable steps to prevent the harassment from occurring. This is a high threshold and difficult to establish successfully. A proven claim for sexual harassment can see large awards in the employment tribunal, due to the incorporation of injury to feelings.

Policies and Procedures

All employers’ have a duty of care to protect their workers will be legally liable for sexual harassment in the workplace if reasonable steps have not been taken to prevent it. Accordingly, it is essential that employers have policies and procedures which are fit for purpose, tailored to their organisation and implemented effectively so that staff are aware of what acceptable behaviour is and is not and the consequences of not following the organisation’s policies and procedures. The Equality and Human Rights Commission has published guidance for employers on dealing with sexual harassment in the workplace:

There are no minimum requirements to can rely upon to demonstrate that reasonable steps have been taken to protect workers, but all employers will be expected to have in place:

• An anti-harassment policy that is communicated to workers and is effectively implemented, monitored and reviewed
• An appropriate procedure for reporting harassment, protecting victims of harassment and taking action if harassment occurs.

Complaints may be dealt with under an employer’s existing grievance policy or anti-harassment policy and it is recommended that anybody dealing with the complaint should receive specialist training. In order to prevent these complaints occurring in the first place, it may be worth mentioning a few key essential elements of an anti-harassment policy. These include a commitment to a zero-tolerance approach to sexual harassment, a statement that sexual harassment is unlawful and a range of appropriate sanctions if harassment occurs.

It goes without saying that these policies cannot effectively be implemented unless all staff are given the opportunity to receive anti-harassment training and ongoing reflection in the workplace. Additionally, it may be useful to ensure that there is verbal communication of the policy during staff induction so that the risk of staff missing any crucial information is eliminated.

Use of Non-Disclosure Agreements

There has been particular controversy over the use of non-disclosure agreements (NDAs) in cases of sexual harassment. Many employers have used settlement agreements to protect their reputation that often contain confidentiality clauses that prevent the employee to discuss allegations with a third party or from reporting them to the press.

The EHRC has published a report that makes recommendations about NDAs, including that the government should legislate to make void any contractual clause which prevents the disclosure of future acts of discrimination, harassment or victimisation.

The government is now consulting on legislation to ban confidentiality clauses which prevent victim reporting or reporting of potential criminal acts to the police.

In light of this, employers should take the view that NDA’s which prevent the disclosure of future acts of discrimination, harassment or victimisation are unacceptable and should not be used.

Serious Incident Reporting

Where a charity is dealing with allegations of sexual harassment it should consider reporting this as a serious incident to the Charity Commission. The Commission’s recently updated guidance widens the definition of serious incident as an adverse event, whether actual or alleged, which results in or risks significant harm to charity beneficiaries, staff, volunteers and harm to the charity’s work or reputation. ‘Significant’ means significant in the context of your charity, taking into account your staff, operations, finances and/or reputation. Advice should be sought where an organisation is not sure whether or not to report.

Reporting these serious incidents to the Charity Commission has three main purposes:

1. The Commission needs to ensure that trustees comply with their duties.
2. The Commission may need to provide regulatory advice or guidance or use its statutory powers.
3. The Commission can assess the risk to other charities.

Tackling sexual harassment: what does the future hold?

The Women and Equalities Committee report on sexual harassment in the workplace made recommendations on the current system which included putting sexual harassment at the top of the agenda, for regulators to take a more active role, making enforcement processes work for employees and to clean up non-disclosure agreements.

The Charity Commission has been clear that safeguarding should be a clear governance priority and will consider any safeguarding approach taken by a charity in light of its extended definition which we discussed earlier in the article. A Charity Commission spokeswoman says: “Everyone involved in charities should feel safe, and so bullying has no place in the charity sector. The Commission’s new safeguarding strategy is about ensuring charities can inspire trust so that people can improve lives and strengthen society; as well as fulfilling their legal duties around safeguarding, we want to see all charities living their values and being driven by their charitable mission and purpose in everything they do.” The key to success in any safeguarding approach will be creating a culture within your organisation where people are valued, policies are adhered to and uniformly applied to everyone regardless of role or seniority, and any issues arising are dealt with effectively and openly. There will no doubt be interesting learning points when the Charity Commission’s inquiry report into Oxfam is published, as well as the final conclusions of the Independent Commission established by Oxfam in the wake of the safeguarding scandal, which should be published in May 2019.

Additionally, the Government have promised, as of December 2018, that they will work with the Equality and Human Rights Commission to introduce a statutory code of practice to tackle sexual harassment at work, following calls from the Women and Equalities Committee in its major report.

The widespread criticism in relation to harassment in the workplace has started to shift the stigma and ensure that workers can speak out. This coupled with the policies and procedures discussed in this report, should make all workplaces a safer environment, whether that be charities or other sectors. It is from this point onwards that there should be a material reduction to the statistic of work place harassment.