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Following the waterfall of horrific claims laid against Hollywood producer, Harvey Weinstein, news of sexual harassment continues to dominate the headlines both at home and abroad. In a recent article, employment law expert Liz Cotton, from JMW Solicitors LLP explains the legal definition of sexual harassment, and what steps employers can take to minimise the risk of cases arising in the workplace.
Many have reacted in shock at the stream of allegations that have been sending shockwaves throughout the entertainment industry and the world of politics. However, the reality is that sexual harassment in the workplace has been prevalent across all industries, albeit largely unreported due to the majority of victims fearing negative repercussions to their careers.
A recent study commissioned by the Everyday Sexism Project (ESP) and the Trade Unions Press (TUP), which surveyed 1,500 women, revealed that 52 percent had been victims of unwanted sexual advances at work, from groping to inappropriate jokes.
More alarmingly, the research also indicated that victims commonly opt out of reporting incidents of discrimination and harassment of a sexual nature. “It is now widely reported that victims of sexual harassment often find it difficult to come forward to speak out about their treatment. The TUC research reveals that the number of employees who did not report their treatment to their employers was as high as 80 percent and of those that did, many said that no action was taken by the employers,” says Liz.
However, the Weinstein ripple effect has undoubtedly opened the floodgates of victims who now feel empowered to share their stories and expose just how deep-rooted and prevalent sexual harassment is across all industries. Many survivors across the globe have united in solidarity behind the #MeToo campaign on Twitter, thus raising awareness and initiating dialogue on how to best tackle the issue.
Covering up of the dark deeds of the rich and powerful is swiftly becoming a disaster aversion tactic of the past, with many prominent organisations publicly condemning the actions of perpetrators (regardless of rank) and cutting ties with them completely.
According to the Equality Act 2010, sexual harassment is defined as unwanted conduct of a sexual nature which has the purpose or effect of violating someone’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.
“It’s important to note that a one off act can amount to sexual harassment even if an employee has put up with a joke previously,” cautions Liz. Although we often associate sexual harassment with physical actions such as touching, the reality is that verbal acts – such as lewd jokes or suggestive comments - can also constitute harassment.
Liz continues, “In deciding whether a particular act has that effect, a tribunal will take into account both the perception of the person complaining but also whether it is reasonable or not for the conduct to have had that impact. For example, where an employee complains that a colleague’s comments offended him or her (although this was not necessarily the colleague’s purpose), the tribunal must consider whether it was reasonable for the conduct to have that effect. If it was reasonable then it is likely to amount to harassment.”
Employers have the responsibility to discourage sexual harassment in the workplace through their policies and continuous education. “This duty may also extend to include conduct which takes place outside of work, at work-related events such as the office Christmas party,” Liz advises.
Ideally, there should be a zero tolerance approach to any form of sexual harassment in the workplace, as this will both discourage potential offenders and empower employees to feel able to raise their grievances in the first place. Here are some top tips to stop sexual harassment in the workplace:
“This should typically include a statement of commitment from management that harassment is unlawful and will not be tolerated,” says Liz. “The policy should also provide examples of what kind of behaviour can amount to harassment, set out examples of unacceptable behaviour and how an employee can go about raising their concerns with their employer without fear of reprisal. It should make clear the consequences and explain that bullying and harassment will be treated as a disciplinary matter.”
Liz advises, “Separate to providing the policy, it is critical that employers provide training both for new staff as part of any induction, but also refresher training for existing staff particularly if there have been problems, for eg culture of banter which risks crossing the line. This is particularly important for those with line management responsibilities as it will help them understand what is expected and provide useful tips to assist them manage issues as they arise.”
In far too many cases, victims of sexual harassment are cautious of coming forward with their complaint because they fear a back-lash from the perpetrator. This is why it is important to remind all employees that retaliating against someone for filing a sexual harassment claim is not only wrong, it’s against the law and exposes the company - and in certain cases the individual - to the risk of litigation. In the high-profile cases of sexual harassment, there have been accounts of subsequent intimidation tactics used by the wrongdoers to silence their victims. Ensure that this doesn’t happen in your workplace by enforcing a zero-tolerance approach regardless of rank.
“When handling complaints, an employer should always ensure that they are handled both sensitively and where possible confidentially,” says Liz. “In some cases it may be possible to rectify matters informally. Sometimes an individual is simply not aware that his or her behaviour is unwelcome and an informal discussion can resolve matters.”
Liz maintains that mediation is one strategy to help resolve any cases of sexual harassment which may arise, saying, “In both large and small organisations, mediation can play a vital role in resolving workplace disputes include those about harassment, by providing a confidential avenue for an informal approach and perhaps an opportunity to resolve the complaint without need for more formal action.
Sexual harassment can have a detrimental impact on one's wellbeing both physically and mentally. For this reason, Liz recommends that employers offer additional support to victims, saying, "For those who have suffered harassment, there may be consequences for their physical and mental health. So providing the individual with access to counselling or to and occupational health advisor is another strategy an employer might consider by way of providing further support."
Liz Cotton is a Partner and Head of JMW’s Employment Law team in Manchester Spinningfields. Liz and her team have a wealth of expertise in advising across the full spectrum of employment law with a particular focus on advising employers. Liz regularly advises clients on both contentious and non-contentious matters for example, ad hoc HR queries, reorganisations, redundancy exercises, tribunal claims, for e.g. discrimination, preparation of contractual and policy documents, disciplinary and grievances and TUPE transfers. Liz has significant experience in the retail, pharmaceutical, logistics and sporting sectors.
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