Tackling workplace sexual harassment

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Andrew Rayment and Laura McLellan, partners in the employment team at law firm Walker Morris LLP, discuss the importance of dealing with sexual harassment in the workplace in the wake of the #Metoo movement

Any employer who has ever had to deal with a harassment complaint, grievance or employment tribunal claim will know that they can be unsettling and a major (costly) headache for all involved. By their very nature, they occupy a lot of managerial ‘headspace’ and time. The bottom line is that they are bad for business – bringing in their wake potential reputational damage, legal expense, management time, issues with stakeholders and with the wider workforce.

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Since the #Metoo campaign, there has been real shift in what is seen to be acceptable and unacceptable both in society in general and the workplace. Gone are the days when incidents might have been ‘brushed under the carpet’ or a ‘quiet word’ had with offenders. The spotlight is focused firmly on the issue and it now requires employers to take a proactive stance. Companies that turn a blind eye to suspected problems or fail to deal with toxic workplace cultures could end up embroiled in costly litigation as well as facing adverse morale and PR issues.

Compared to even five years ago, the ‘bar’ for best practice and diversity compliance is set far higher than it was. New, detailed technical guidance in this area was issued in January 2020 by the Equality and Human Rights Commission (EHRC). It is a lengthy document but that shouldn’t put anyone off reading it as it includes many accessible and practical examples of how to get it right and, importantly, how not to get it wrong.

The media spotlight
It goes without saying that a damaging media story can have a disastrous impact upon an organisation’s reputation, workplace morale, credibility with stakeholders and ability to attract and retain talent.

To illustrate the problem, consider the 2019 case of a City employee – Nathalie Abildgaard who worked for FM Investors – who claimed that one of her employer’s directors sexually harassed her when he repeatedly invited her back to his hotel room after a work event in Spain. The story is memorable as she received a settlement of £270,000 – the settlement agreement did not contain a confidentiality clause, enabling the press to report on the payment made.

The employee had alleged that her employer failed to take reasonable steps to prevent the director from carrying out acts of harassment and therefore failed to protect her from workplace harassment. She also alleged that the employer failed to respond appropriately after she raised her complaint about the incident. The employer decided not to suspend or dismiss the director. Instead it took action by reducing his bonus for the year and banning him from drinking at work events for 12 months.

Ordinarily, if a claim is settled, you would expect a condition of any settlement to be a full confidentiality clause (or ‘gagging’ clause). But the employee in this case may not have been willing to agree to one.

No room for complacency
Harassment claims continue to spring to light. No workplace is immune, and employers must stay vigilant and proactive. The #Metoo campaign means that individuals are much more empowered to identify and call out unacceptable behaviour.

The government has announced that it intends to introduce tougher legislation on workplace harassment. There were a number of reviews culminating in a public consultation during 2019 on proposed new measures including introducing a mandatory duty on employers to prevent harassment at work and increasing the time limit to bring a harassment Employment Tribunal claim from three to six months.

As part of this drive, the Equality and Human Rights Commission (EHRC) is expected to publish a statutory Code of Practice on harassment during 2020. This code will have similar ‘teeth’ to the ACAS Code of Practice on disciplinary and grievance procedures in that Employment Tribunals will be obliged to take an employer’s non-observance of the code into account when ruling on a claim.

Why does this matter?
The rules on statutory Codes of Practice are very clear. Breach of the provisions in a statutory Code of Practice is a matter that an Employment Tribunal must, by law, take into consideration. Effectively, this means that a breach or non-observance could, at worst, put a serious hole in an employer’s Employment Tribunal defence.

At the very least, it could have a negative impact on the employer’s credibility in the eyes of the tribunal and lead to bad publicity, bearing in mind that reporters often attend and report on tribunal hearings.

New guidance
Meanwhile, the EHRC has just published new technical guidance on sexual and other harassment at work which is described as, “the authoritative and comprehensive guide to the law and best practice in tackling harassment.” Employers ignore it at their peril as whilst the guidance does not have the statutory status referred to above, it can still be used as evidence in tribunal proceedings. In practice, Employment Tribunals are likely to expect employers (especially those with sizeable workforces/an HR function) to demonstrate a sound working awareness of the guidance and compliance with its recommendations where practicable. Conversely, non-compliant employers are likely to find that it is used as a stick to beat them with during tribunal proceedings.

The guidance is comprehensive, leaving no stone unturned in terms of what employers should be doing (and it includes many examples) to understand their legal obligations and adopt best practice to unearth, prevent and respond appropriately to harassment complaints.

There are so many recommendations in the guidance that they cannot be summarised easily. There can be no substitute for spending time reading through it.

Confidentiality clauses and NDAs
The government has also signalled that it intends to tighten up the rules around confidentiality requirements in settlement agreements and non-disclosure agreements. This is all part of the wider focus on tackling harassment both in the workplace and wider society. As we saw from the case study earlier, individuals are likely to be less willing to agree to onerous ‘gagging’ clauses where they have been subjected to unacceptable harassment. The question that will be asked by a victim of harassment is likely to be, ‘why should I agree to stay quiet when I am not in the wrong?’

A business risk
Companies may be surprised by the high degree of pro-activity that is now expected of employers. HR teams may want to consider flagging this as a point to be included in ‘business risk’ discussions. The key take-away is that it is no longer good enough to simply have a policy on anti-harassment that gets dusted off every once in a while. Employers are expected to consider and address the issue at a strategic level. The bottom line is that there is now an expectation that employers put the legwork in to actively root out harassment throughout the organisation, from shop floor to board room.

Key recommendations in the guidance
The section titled ‘Taking steps to prevent and respond to harassment’ includes a number of points. These fix the bar for good practice substantially higher than many may imagine.

Anti-harassment policies should include clear examples to illustrate each definition of the different forms of harassment (i.e. sex, race, disability, age, religious belief etc). Workers should be trained on what harassment in the workplace looks like, what to do if they experience it and how to handle any complaints.

Policies should specifically address the issue of ‘third party harassment’ (including from customers), what steps will be taken to prevent it, to remedy it and if it has happened, to prevent it happening again. This is particularly important for external-facing workforces where staff should receive regular training on how to deal with and report any instances of harassment.

IT, communications, social media policies and the like should specifically address harassment (and cross-refer to harassment policies) including where harassment takes place on personal devices.

Employers should consider publishing anti-harassment policies on their website to facilitate access for contract workers (who are covered by the protections of the Equality Act 2010) or staff on leave who might find it harder to access the policies internally. The guidance notes that external publication would also demonstrate the employer’s commitment to transparency on the issue of harassment.

It is not appropriate to just tell employees they can get a copy of the anti-harassment policy from a manager.

Anti-harassment policies should be shared with businesses that supply workers and services to ensure that all workers supplied are aware of the standards expected of them and how to report instances of harassment.

Centralised records should be kept that enable trends to be spotted and analysed and staff surveys should be undertaken to evaluate the effectiveness of the policies. Employers should be proactive to trends that might indicate an underlying issue such as behavioural changes, dips in productivity, comments at exit interviews or avoidance behaviours.

Bus driver told to ‘pretend she was married’
In May 2018 People Management reported on a case involving a female bus driver and London General Transport Services.

The driver was told to pretend that she was pregnant or married to avoid harassment from her male colleagues and the Employment Tribunal subsequently found that she had suffered discrimination and was unfairly dismissed.

London General Transport Services was found guilty of harassment, discrimination and constructive unfair dismissal, after the employee lodged a grievance about multiple counts of sexual harassment from her majority-male team, only to be told by her union rep the culprits were ‘probably joking,’ and that she should lie about her relationship status to avoid future incidents.

London General Transport Services was ordered to pay the driver a total of £55,167.20, broken down into a financial award of multiple damages – including those for sex discrimination and unfair dismissal – of £23,612.89, and an award for injury to feelings for sex discrimination of £17,000.