Sexual Harassment in the news and the impact on the workplace

At our recent HR breakfast seminar (14 September), we discussed how to handle sexual harassment complaints in the workplace. The theme was influenced by what happened at the Women’s World Cup final when the former President of the Royal Spanish Football Federation, Luis Rubiales kissed (seemingly without consent) one the players , Jennifer Hermoso. The kiss has largely overshadowed the sporting achievements of Spain’s historic success.   Denials, suspension, player boycotts and resignation all followed.

In the same week as our HR Breakfast seminar…

…. Unison reported 1 in 10 of employees in the UK healthcare sector have been victims of sexual harassment or sexual assault in the last 12 months (‘It’s Never Ok’ Report).

…. Manchester United FC’s Chief Executive, Richard Arnold spoke to the club’s staff to address concerns raised by staff in relation to the club’s handling of misconduct matters relating to some of the players (amongst other things).

Then on Saturday 16 September, a Dispatches TV documentary (‘In Plain Sight’) broke the news about several complaints of sexual assault, rape and harassment made against the comedian, Russell Brand over a 7 year period (2006-2013). We should point out that Mr Brand has denied any wrongdoing. He has made it clear that his relationships have always been consensual. Nonetheless, the allegations against Mr Brand have raised a number of questions about the TV producers and broadcasters who hired him. Did they know anything? Did they turn a blind eye to what was going on?

Since the story broke, the BBC have said that it is conducting a review to investigate the allegations and has encouraged those who have raised the allegations anonymously to speak to them ‘if willing’. The BBC have said that a key part of the review is to understand what complaints were raised at the time and whether there was knowledge of Mr Brand’s conduct when he worked for the BBC and what was done as a result.

In the context of the workplace

Sexual harassment is defined in the Equality Act 2010 as unwanted conduct of a sexual nature, which has the purpose or effect of either: (a) violating the complainant’s dignity; or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant.

Sexual harassment comes in many forms – physical touching, sexual assault, unwelcome sexual advances to sexual jokes or innuendos.

Employers are liable for any acts of their staff in the course of employment unless they can demonstrate that they have taken all reasonable steps to prevent the harassment from taking place in the first place (the ‘statutory defence’).

There are a number of questions for employers to consider following the above news stories.

1. Should employers investigate historic complaints of sexual harassment?  

Leaving aside the legal position….if your business cares about doing the right thing by its staff, then this is not a question that needs asking.

Where historic allegations are raised by employees, the passage of time can present some evidential difficulties. However we strongly recommend that employers investigate such matters completely, or as far as it is possible to do so.

Historic complaints should be overlooked because they were not reported at the time. Going back to the survey commissioned by Unison, nearly 3 in 10 of staff failed to report their complaints.  There are a number of reasons why staff may not want to make a complaint. Almost half of those in the Unison survey put it down to a perception that nothing would be down about their complaint.

Employers need to be live to the fact that if there has been continuing harassment, this will be classed as a ‘continuing act’ and therefore an employee could take them to an employment tribunal, even if some of the acts complained of are historic.

Any failure to treat an old complaint seriously (even if it has been brought a long time following the initial incident of harassment occurring) could result in an act of discrimination itself.

Employers are also judged by the public court…other staff are likely to be demoralised by a failure by their employer to deal with serious complaints.

2. Awareness of issues encourages more people to come forward.

In light of the latest press coverage, we expect to see a rise in sexual harassment complaints in the workplace. Your staff will expect you to live up to your values.

Since the Dispatches documentary, more people have come forward to complain about Mr Brand’s behaviour. The press coverage and universal condemnation of the alleged behaviours of Mr Brand has given people confidence to speak up.

A single complaint in the workplace can sometimes lead to others coming forward, particularly if the employer has shown that it will take appropriate steps to address the matter.

3. What if the police are involved in the case?

The Metropolitan Police have confirmed that they are looking into “non-recent” allegations made against Mr Brand.

Employers can sometimes be reluctant to continue an investigation if the police are involved. In equal measure, the accused may be less willing to co-operate in an investigation if there is a fear that they could incriminate themselves in a later criminal case.

The difficulty with criminal proceedings is that they can take significant time to conclude. There is also no guarantee that those accused of any wrongdoing may end up in court.

We would encourage employers to continue with their own investigation and make findings accordingly. You do not need to wait for the outcome of a criminal investigation. Any findings you make are unlikely to influence the outcome of criminal proceedings as the burden of proof is different. In any Employment Tribunal case, employers will be judged on whether they formed a reasonable belief that the employee committed the charge.

Of course, any evidence compiled in the investigation by the employer may need to be handed over to the police at some stage for the purposes of the criminal proceedings. We recommend that the employer takes legal advice before doing so.

4. How should employers respond to these news stories?

• Employers should carry out a thorough review of their framework and policies to ensure that they are fit for the purpose. In other words, do these policies make it clear that forms of harassment or discrimination are not tolerated.
• A clear process should be communicated to all employees about how to raise a complaint and to whom. This means that everyone within the workplace will understand how to raise any issues and what steps will be taken.
• Complaints of sexual harassment are usually highly sensitive and can be complex. Management should be specially trained and confident in following and carrying out the policies and dealing with any concerns or complaints which are raised. Management should also be competent in managing conflict and participating in open and sensitive conversations.
• Ensure that policies and procedures are followed consistently and that fair processes are followed in a reliable way, without fail. This will give confidence to employees who are victims of harassment in the workplace that their complaints will be taken seriously. It is important that the process if fair, and the policies and procedures should protect both the individual raising the concerns and also the alleged perpetrator. HR teams play a critical role in the success of policies and procedures.
• Talk in teams. Team leaders should raise awareness of these issues and signpost policies and procedures.
• Take decisive action in the face of a complaint – carry out a full investigation and make findings and recommendations. If the complaints are proven it may warrant in disciplinary action taken against a perpetrator.

The above steps are essential for an employer seeking to satisfy the statutory defence.

How can we help?

If you would like to discuss your workplaces policies and procedures further, or require any support in management training and the implementation of appropriate policies, please contact Mark McKeating on markmckeating@kuits.com or 0161 832 3434.