In recent weeks, Harvey Weinstein, one of Hollywood's most famous and powerful film producers, has been on the receiving end of numerous allegations of sexual harassment. The sheer number of allegations which were made and the fact that many go decades back only go to highlight the very real issues around the reporting and handling of harassment incidents, whether sexual harassment or otherwise. It is high time that we take a more proactive stance towards addressing these issues, rather than sitting back, watching the news stories gradually disappear into the ether, and waiting for the next victims to come forward. This proactivity is something which can start with employers and in this article we explore the steps which employers can take to ensure that they are doing all they can to address such issues.
The legal framework
Before considering employers' roles in addressing harassment, it is important to understand the relevant legal framework. Harassment in the workplace is prohibited under section 26 of the Equality Act 2010. There are three definitions contained in this section. The first is a general definition which applies to certain 'protected characteristics', namely age, disability, gender reassignment, race, religion or belief, sex and sexual orientation. The second and third relate specifically to conduct of a sexual nature. In summary, these definitions cover unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual. There are endless examples of behaviour which could fall under these definitions, but, to give an idea, the type of conduct which might be caught by this definition includes: unwelcome sexual advances, suggestive behaviour or physical conduct; racist, sexist or homophobic comments; sending offensive emails; or posting offensive social media content.
With the legal framework in mind, below we have set out some guidance to employers on addressing harassment issues in the workplace and steps which can be taken to prevent it from occurring in the first place.
Guidance for employers
- Take steps to encourage reporting of harassment incidents
Whether people are reluctant to report incidents of harassment in the workplace because they fear retribution, are concerned that it may damage their reputation/career, or they do not consider that their complaints will be taken seriously, it is irrefutable that we live in a society in which many do not feel able to come forward.
Employers need to create a working environment in which employees feel comfortable raising concerns at an early stage with the assurance that they will be taken seriously and treated with the appropriate level of confidentiality and professionalism. The starting point is for employers to ensure that they have clear and readily accessible policies in place (including equal opportunities and anti-harassment & bullying policies) which employees are made aware of and which encourage reporting and give employees the comfort they need to raise concerns in the knowledge that they will be appropriately addressed, regardless of the identity and seniority of the alleged perpetrator. The policies should clearly set out what constitutes unacceptable behaviour and the consequences of breach as a deterrent to employees who might be minded to carry out acts of harassment and to provide a basis for the employer to take disciplinary action if required.
- Provide appropriate training and education to employees at all levels
It is one thing for employers to have good policies in place, but it is another matter altogether to ensure that those responsible for administering them are properly educated to do so. Employers need to ensure that their management and HR staff in particular are effectively trained to deal with equal opportunities and harassment issues; both in terms of being able to provide support and guidance to complainants as well as having the knowledge, skillset and confidence to be able to conduct the necessary investigations and any disciplinary processes that may follow. Harassment allegations are by their very nature serious, and so it is vital that staff are properly educated to be able to react quickly and appropriately to allegations. Training and education should also be provided to all other employees so that they can properly understand the company's culture and what is and is not acceptable. It is not enough to provide training to employees only when they join the company – rather this training should be repeated frequently enough to keep it active within employees' minds and to show that zero tolerance towards harassment is a core company principle.
Why is it so important for employers to take these steps?
The primary reason for employers to take steps to prevent incidents of harassment in the workplace and to address harassment incidents appropriately where they do occur is, simply, that it is wholly unacceptable and there is no place for it in society, let alone the workplace. However, there are also many commercial and legal reasons which make this so important for employers. We operate in an increasingly competitive marketplace in which talented individuals have vast choices of companies to work for and, with the growth of social media, companies find themselves increasingly in the spotlight. From a commercial perspective, achieving a positive company culture is key to attracting and retaining employees as well as customers/clients, and this must start with a zero tolerance policy to issues such as workplace harassment. From a legal perspective, anything done by an employee in the course of their employment is treated as having been done by the employer, whether or not the employee's acts were carried out with the employer's knowledge or approval. However, employers have a defence where they can show that all reasonable steps were taken to prevent the employee from doing the act. This simply goes to reiterate the importance of taking proactive steps to address harassment in the workplace before it's too late and employers find themselves with indefensible complaints on their hands.
As the Weinstein scandal continues to unfold in the press, the need to do more to protect against harassment and encourage victims to come forward has already come under the spotlight. Employers must ensure that they are the ones to lead the charge.