Harassment in the workplace — a growing issue for employers

Recent coverage of harassment has focused not only on incidents of discrimination and sexual harassment within a variety of organisations, but also upon McDonald’s entering into a legally binding agreement with the Equality and Human Rights Commission together with planned changes to The Equality Act 2010.

These have brought into sharper focus the need for employers to protect both their employees and themselves. We consider how widespread harassment is, the legal protection available and how employers should respond.

Is harassment ubiquitous?

Harassment is not a new or 21st century phenomenon though it has been viewed and treated more seriously in recent years with complainants less likely to adopt a “shrug of shoulders” response.

When it occurs, studies do however suggest it remains under-reported, with complainants deterred either thinking that they will not be believed or that they will face consequences for reporting the perpetrator.

The Scottish Trade Union’s Council (TUC) published a survey of members in March 2022 which revealed that 45% of respondents had experienced sexual harassment at work — one third of those in the course of the last year. A significant percentage of respondents (85%) felt that their report of the incident had either not been taken seriously or investigated appropriately.

In the first ever harassment survey undertaken in 2020 (which was not merely confined to the workplace), the Government Equalities Office received over 12,000 responses; 72% of respondents had experienced at least one form of sexual harassment in their lifetime with 43% reporting the occurrence during the course of the last 12 months.

Sexual harassment was most common in public transport and the workplace — 28% and 29% respectively.

It was also not uncommon for sexual harassment to be perpetrated by someone who was not a fellow employee — for example a client, a member of the public/student (14% of all incidents). Nor is sexual harassment confined to the physical workplace – Goma magazine in its Rights of Women Survey undertaken in January 2021 revealed that 45% of women surveyed had been sexually harassed on online work platforms since March 2020.

Although sexual harassment can, and does, occur across all workplaces, a number of sectors have a higher prevalence of incidents. Hospitality is one such example due to its “pre-disposition” to alcohol, though any organisation having a culture which promotes an imbalance of power between management and employees, in addition to workplaces which are largely male dominated, are disproportionately affected.

How are harassment and bullying defined?

Whilst accepting that human nature means people have different boundaries — for example one person’s banter may be offensive to another, harassment does have a legal definition which is set out in the Protection against Harassment Act 1997 (which has both civil and criminal remedies);

“A (Person) must not pursue a course of conduct which amounts to harassment of another
and which he knows or ought to know amounts to harassment of the other”.

This definition has been interpreted in several legal cases as requiring the conduct to occur on at least two occasions, to comprise a level of behaviour to go beyond mere annoyance with the conduct judged objectively on what a “reasonable person” would consider. The Courts have suggested that it is easy to determine whether the behaviour complained about is or is not harassment, but the reality is this is often hotly contested in any legal claim.

As to what constitutes bullying, there is clearly a heavy overlap with harassment. However, if a distinction exists between the two, it is that generally bullying contains a psychological component.

Other legal protection

Whilst The Protection against Harassment Act 1997, with its advantage of a six-year limitation period provides complainants with one route towards legal redress, other civil remedies include — claims against employers for personal injury and breach of The Equality Act 2010 through an Employment Tribunal.

For personal injury claims, if the harassment is carried out by a fellow employee and in the course of employment then (if proven), the employer would be held vicariously liable for the actions of its employee. For claims in the Employment Tribunal, breach of The Equality Act would occur if the employer failed to take reasonable steps to prevent its employee from committing the harassment.

The Equality Act will shortly be amended to extend an employers’ responsibility to include harassment undertaken by a Third Party — for example by a client or member of the public. It should be noted, that for employment claims brought in a tribunal, there is a strict three-month time period in which the action should be commenced from when the harassment occurred.

What can organisations do?

Whilst organisations may choose to follow McDonald’s example and sign up to The Equalities Watchdog (Equalities and Human Rights Commission), there remains no compulsion, although it would be prudent for employers to have in place the following:

• A zero tolerance approach to sexual harassment.
• Equip all employees with anti-harassment training.
• Conduct regular anonymised surveys to gather the views and experiences of staff in the workplace.
• Policies to allow an effective response to complainants & follow your policy once the complaint is made.

Investigation is key

If faced with a complaint of sexual harassment, early and effective investigation by Human Resources or a Senior Manager is key to establishing the factual matrix which surrounds the complaint.

This will include:

• Documentation — generally emails and messaging and video and audio records.
• Detailed signed witness statements should be taken not only from the complainant and alleged perpetrator but from any colleagues who may have witnessed not only the incident but prior conduct and behaviour.

In appropriate cases consideration should be given to notifying your Insurer. Many then become involved, in the background, at an early stage even though there is no claim at that point.

Conclusions

Despite the current high profile of sexual harassment in workplaces, there is no sign that a flood of claims either for personal injury or in the Employment Tribunals is imminent. It is an area though that can lead to publicity in the media.

Whilst employers cannot control every aspect of their employee’s behaviour, they can minimize frequency by creating a culture which values equality, respect and fairness to sit alongside established procedures and policies and a zero tolerance approach.