Workplace Sexual Harassment – Your questions answered

Sexual harassment has become a hot topic recently with historical and current claims coming to light in all types of jobs and industries. I recently wrote about my personal experiences which you can read here.

Regardless of your view on the legitimacy and timing of some of these claims this is a topic that needs to be addressed to prevent businesses falling foul of significant legal exposure.

So let’s first address the big question – what constitutes sexual harassment?

Sexual harassment constitutes any unwelcome / unwanted behaviour of a sexual nature. It’s not about fun or friendship but (most usually) about the abuse of power.

You should bear in mind that many people respond to situations in different ways. What may seem like an innocent action or remark to one person may be deemed offensive by another and the law sides with the ‘victim’ not the ‘perpetrator’.

Since there is no single definition, the test ultimately boils down to how the recipient feels about the behaviour.

Who can be the victim of sexual harassment?

Men and woman can be subject to sexual harassment, however, the vast majority of cases have been by women against men. It is estimated that 50% of women in employment are, or have been, subject to sexual harassment of some form or other. It doesn’t just happen to women who work in large offices or those who work within a predominantly male working environment; it can happen to people in any occupation, to any age group and from every community.

How can we recognise sexual harassment?

Broadly speaking, sexual harassment tends to fall into 3 categories; verbal, non-verbal and physical. I’ve outlined some examples below:

Verbal

• comments about appearance, clothes, body
• questions or comments about a person’s sex life
• requests for sexual favours or touching such as massages
• promises or threats concerning a person’s employment or promotion chances in return for sexual favours

Non-verbal

• obvious looking or staring at a person’s body
• the display of sexually explicit materials such as calendars, pin ups or magazines
• sending of sexually explicit text / pictures via email or social media

Physical

• unwanted touching, hugging, kissing, caressing, massages
• sexual assault
• rape

Is it sexual harassment if the ‘victim’ doesn’t complain?

Most likely yes! Most of the time the victim doesn’t wish to complain as they are concerned about the impact of making a complaint on their career prospects. This often leads to them putting up with the unwanted conduct in order to avoid conflict. This doesn’t mean that it isn’t unwanted and furthermore, if you as the employer becomes aware of it, you have a duty of care to both the victim and other employees who may be affected by the conduct.

What do we need to do in our business to help prevent these problems?

Consider the values and culture of your business – are you fostering a good and safe environment?

It’s not about being the fun police but it is about reminding people that everyone has different perceptions of what is and isn’t acceptable to them. Encourage team members to feel safe when saying “no, I don’t like that” and ensure that they are listened to. Self-policing is ultimately the most effective method.

Removing the old school hierarchy of the ‘command and control’ manager will also help remove the power-play that often leads to sexual harassment.

The first thing to do is establish a policy which defines harassment, provides examples, and confirms zero tolerance. It will need to outline a complaints/grievance procedure and refer to the possible outcomes. Make sure you clearly communicate the policy to existing staff and new recruits.

Investigate all complaints of harassment quickly and effectively, clearly documenting the procedure followed. It is very important that you protect both parties during this process and take an innocent until proven guilty approach until investigation and subsequent remedial action has been identified.

(I have to say that in my experience, the majority of cases of sexual harassment I’ve dealt with have turned out to be vexatious/malicious claims so you must be careful not to damage the reputation of the alleged perpetrator before fully investigating. In the case of malicious claims, you may decide to take action against the claimant).

Address genuine instances of harassment with the perpetrator and protect the victim from retaliation (victimisation). Clearly document the process followed, the decisions made and remedial action taken.

Can you help us identify any risks within our business?

Yes of course, I’d happily appraise your current business practices, identify any risks and make recommendations for the future. You can call me on 020 8798 3470 to book a call.

(This article is for general information purposes only and does not constitute legal, or other professional advice. I would advise you to seek professional advice before acting on this information).