Indecent Proposal



This article was first published in the New law Journal. Click here to view the article.


  • As is evident from the allegations relating to Lord Rennard and accounts recorded by the Everyday Sexism Project sexual harassment is not confined to the workplaces of the 1970s and 80s. It is also clear that it is not restricted to any one sector – recently tribunals have dealt with cases of sexual harassment by hairdressers, trade union representatives, senior managers, bankers and restaurant owners.
  • Employers have a responsibility to prevent sexual harassment and, if this is not possible, to respond effectively when a complaint is made. Defending claims at tribunal stage is expensive, time consuming, and stressful for all parties.

What Is Sexual Harassment?

  • Harassment on the grounds of sex is unlawful under section 26 of the Equality Act 2010.
  • It occurs where an employee engages in unwanted conduct of a sexual nature and that conduct has the purpose or effect of either violating another employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that employee.
  • Thus harassment falls in two categories.
    1. First where the purpose of the conduct is to violate another employee’s dignity creating an intimidating, hostile, degrading, humiliating or offensive environment for that employee.
    2. Second when this is the effect of the conduct.
  • In the first kind of case the intention of the perpetrator is examined. As the perpetrator is unlikely to admit his conduct had that purpose then inferences will be drawn from surrounding circumstances. Establishing the necessary intent will be easier in a case where the perpetrator has been told his conduct is unwanted and offensive but nevertheless repeats it. Thus in one case an employee, who had what was described as ‘gay South African accent’, succeeded when, after his accent was mimicked, by his manager he asked the manger to stop as he felt it was harassment on the grounds of sexuality. The manger did not stop and others joined in. The Tribunal held that the initial mimicking was not harassment because the manger was a talented mimic who mimicked others. However, once the employee had drawn the manager’s attention to his concern it became unwanted and unlawful harassment. It is important to note that in this kind of case the victim’s perception of the conduct is not relevant because the focus is on the purpose of the conduct.
  • In the second type of case it is the effect of the behaviour on the recipient that is important. In this kind of case; the perception of the victim, the circumstances of the case and, the whether it is reasonable for the conduct to have had the effect, are all taken into account. This allows an employer (and alleged perpetrator) some protection against unduly sensitive victims. The context is very important. As was pointed out in Land Registry v Grant [2011] ICR 1390 CA a humorous remark acceptable amongst friends in a social setting may have a very different effect in another setting if spoken vindictively by a hostile speaker.
  • Employers are vicariously liable for the discriminatory acts of their employees which take place during the course of employment, regardless of whether the employer is aware of the conduct in question but the employer will have a defence if they can show they took all reasonable steps to prevent the employees from carrying out the act or acts (section 109 of the Equality Act 2010).
  • In summary Management should have in mind that:
    1. Sexual harassment can take many forms, for example:
      • Inappropriate touching
      • Sexual jokes/innuendos
      • Inappropriate emails or text messages
      • Making personal or sexual remarks about someone’s appearance
      • Pressuring an employee to work closely with the perpetrator
      • Inappropriate signs/posters
      • Repeatedly asking someone for a date or to social events when it has been made clear these encounters are unwelcome
    2. Even a one-off incident. Can constitute harassment if appropriately serious. In Insitu Cleaning Co Ltd v Head [1995] IRLR 4 EAT a single act of unwanted conduct ‘Hiya, big tits’ to a female employee was held to amount to harassment.
    3. Sexual harassment does not have to be at the workplace – it will still amount to harassment when it takes place on social occasions or networking events. Office Christmas parties are particularly risky occasions.
    4. Harassment does not have to be aimed at any particular individual. An inappropriate atmosphere may suffice e.g. frequent inappropriate emails and /or sexually explicit work ‘banter’.
    5. Employers should ensure that any office gossip does not remain unchecked. In Nixon v Ross Coates Solicitors UKEAT/0108/10, an employee was upset as a result of gossip over the paternity of her child, having conducted an affair with a colleague at a staff Christmas party. The EAT found that this amounted to sexual harassment as it was a course of unwanted conduct.
    6. Work ‘banter’ may constitute sexual harassment but it will be a question of degree. Andy Gray and Richard Keys’ sexist comments about a female assistant referee were not viewed kindly by their employers. By contrast, a tribunal found the comment “you’ve got some lovely melons there” to a female employee who had slices of melon on her desk to be a bad taste joke which did not affect her dignity at work.
    7. Even if an employee is ‘joining in’, this does not preclude a later claim for sexual harassment on the basis that the conduct was unwanted: Munchkins Restaurants Ltd & Anor v. Karmazyn & Ors [2010] EWCA Civ 1163.

Dealing With Sexual Harassment

Policies

  • Management should first make sure there is a policy in place which expressly deals with harassment. This should as a minimum:
    1. Identify clearly, by way of examples, what behaviour is unacceptable, that such behaviour will be regarded as gross misconduct, and to whom victims of such conduct should complain including whom they should complain if the conduct is their immediate superior.
    2. Be written in a style which gives encouragement to employees who are suffering harassment to complain about it and reassure employees that an early complaint will lead to a swift resolution. There is often stigma associated with being a victim of sexual harassment. Victims can also fear reprisals or repercussions which can make them reluctant to complain.
    3. Set out the process of making a complaint and the steps to be followed upon a complaint being made. The employer should identify which individuals will investigate and manage any complaints, and train further individuals if necessary. It is advisable that the pool of individuals who can hear are both male and female.
    4. Be regularly updated.
  • It is not enough simply to have a policy in place. All employees should receive a copy and a copy should be made available on the intranet. An employer must take steps to (i) bring it to employees’ attention, (ii) train employees on its meaning and terms and (iii) implement it. In A v B Ltd and others (1998) the tribunal warned that “Putting a notice on a notice board [warning that sexual harassment was unacceptable] is not enough. People have to be told in the plainest terms if employers are to get the message across”.
  • In addition any internet or social media policy should expressly deal with offensive and/or explicit emails or images.

Training

  • Employees should be trained in the meaning of harassment and be made aware of the terms of the policy. If employees understand how seriously harassment is taken and the effect it can have on employees, they are more likely to adhere to the policy. They should be told very clearly that harassment is a disciplinary matter and a zero-tolerance attitude will be taken by the company.
  • Having regular training and a comprehensive policy which is enforced will provide a good foundation for an employer to defend itself against any claim on the grounds that it has taken reasonable steps to prevent the employee engaging in the conduct complained of.

When A Complaint Is Made

  • What ever the truth of the allegations involving Lord Rennard the Lib Dem management appear to have committed the first and cardinal mistake by failing, when complaints were first, made to ask the question: Where could this lead? If management have that question in mind then it will focus their response. They will visualise the potential for escalation, for other complainants to emerge, and perhaps picture themselves in the tribunal having to defend what was said, or not said, and what they did or did not do, and the culture of their organisation, with the attendant tabloid headlines.
  • A tribunal will assess how quickly an employer responded to the complaint and whether the steps it took were effective. Failure to appropriately deal with a harassment complaint will be an indicator to the tribunal about how seriously a management views sexual harassment and how effective its policy is.
  • Do not turn a blind eye; investigate any ‘rumours’ of harassment where appropriate. Whilst it can be difficult to prove harassment as it often takes place in secret, tribunals tend to be extremely critical where many of the witnesses agree that the alleged perpetrator had a ‘reputation’ or was encircled by ‘rumours’.
  • Whenever an issue arises management should read their own policy so that they deal with the complaint in accordance with the policy.

Formal Or Informal Resolution

Informal Resolution

  • In some cases if the matter is minor or has arisen out of a misunderstanding it may be dealt with informally with an appropriate apology and words of advice to the perpetrator.
  • It may be the perpetrator was unaware that his or her behaviour was having such an effect on the recipient and a quiet word is all that is necessary to rectify the situation. If this is the case, both parties might be relieved to have a speedy and unobtrusive resolution.
  • Ask the victim if she is comfortable with an informal resolution but do not put pressure on her to accept this.
  • If there is to be an informal resolution the perpetrator should be spoken to and the effect of his or her behaviour should be explained to them. It should be made clear to him that continuation of past behaviour will result in an escalation of sanctions. He should be informed that although there has been an informal resolution, his behaviour will be monitored for a period. He should be referred to the harassment policy and, if necessary, undergo further training in relation to the meaning and effect of the policy.

Formal Resolution

  • In serious cases, which will include any allegations of explicitly sexual conduct or unwanted touching, or where there is a formal complaint then a disciplinary investigation should be commenced.

Initial Action

  • First, clarify with the victim the extent and exact details of the complaint and the timings of and witnesses to any specific incident. An employer should have all available details in order to set out clear parameters for any investigation.
  • Second, if the allegation is serious consider suspending the alleged perpetrator.
  • Both parties should be told who is investigating, what is being investigated and how long it will take.
  • Both parties should be offered HR support and be advised of a right of accompaniment to any meetings.
  • Keep the complaint as confidential as possible.
    1. If a potential witness can only confirm timings, then it is usually not necessary to disclose the fact of the complaint when interviewing that witness.
    2. Paperwork should be kept confidential and care should be taken than any electronic notes are only circulated to those who need to see them (it may be appropriate for an employer/HR to type notes/minutes rather than a secretary who is not involved in the investigation).
    3. The employer should take care that the fact of the complaint or investigation is not circulated to the rest of the workforce. The employees who do know about the complaint should be told not to prejudge matters or try to communicate with either party about the complaint.
  • Tell the alleged perpetrator and victim not to discuss the complaint. There is a danger that a victim may feel further harassed if the perpetrator tries to ‘explain’ his or her behaviour.

Investigation

  • When conducting the investigation, obtain written statements from both parties and any witnesses.
  • Investigatory meetings should then be held with all these parties to clarify their statements and obtain any further information. Minutes or written records should be kept of these meetings.
  • Once the investigation is complete, a written report should be compiled setting out the complaint, the individuals interviewed and the findings. This decision should then be communicated to both parties, preferably on the same day. If the complaint has not been upheld.

Disciplinary Action

  • If the complaint is upheld then disciplinary action should follow. The outcome will depend on the level of wrongdoing found and any prior warnings.
  • If the perpetrator remains employed it may be necessary to transfer him if the victim is reluctant to continue to work with him or her. The victim should not be moved unless she expressly and unambiguously requests this.
  • In any case where the parties will have to work together support should be offered to one or both parties, as appropriate, to re-join the workforce or to resume working together. A review should be held subsequently to ensure the victim is not experiencing further problems.
  • If the complaint has not been upheld or there was insufficient evidence to support it, both parties may still feel aggrieved. Consideration should be given to a joint meeting with HR or to voluntary transfers.

Conclusion

Employers can now liable for both personal and psychological injury suffered by an employee at work. Fighting employment tribunal claims are costly, stressful and pose a significant reputational risk in harassment cases. Employers need to act now to ensure not just that appropriate policies are in place but also that their employees are trained to construct a workplace culture free from sexual harassment. While it may not be possible to prevent all inappropriate behaviour from arising, being prepared and ready will significantly reduce the fall out.


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Barrister Jeffrey Jupp

Jeffrey Jupp

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