Is your business set up to deal with a sexual harassment claim?

In a previous blog, Thalis examined the law relating to sexual harassment and the hurdles a complainant needs to overcome when bringing a claim. In this blog, he looks at things from a different angle. He considers the importance of employers having a proper process in place to deal with allegations of sexual harassment.

In the #MeToo era we live in, every piece of news relating to sexual harassment has to be closely examined. We need to see what lessons can be learned that can illuminate an issue fraught with complexities for claimants and employers alike.

A Sexual Harassment Claim

An east London tribunal awarded a 17-year-old schoolgirl working at a Pizza Hut branch £15,800 after she won a sexual harassment claim against the famous food chain. The tribunal found that the branch manager had initiated unwanted contact of a sexual nature towards the girl. The tribunal decided that this was “intimidating, hostile and humiliating” for her, especially given her age, and the fact that she was still at school and in her first job.

The Judge, Catrin Lewis, awarded the girl £13,000 for injury to her feelings, and, interestingly, added a further £2,800 due to the business’s failings in handling the case. She did not find sufficient evidence of it having a clear policy or procedure for dealing with sexual harassment. “We found that the investigation was entirely defective,” the judge said in her judgement. “It did not in fact address the points raised by the claimant nor did it provide any response to her complaints.”

House of Commons Women and Equalities Committee Report

In July, the House of Commons Women and Equalities Committee (WEC) issued a report into sexual harassment in the workplace. The report’s key finding should make all employers sit up and take notice. Its firm conclusion is that the government, regulators and employers are failing in their responsibilities to tackle sexual harassment in the workplace. This is despite the fact that 40% of women and 18% of men have experienced unwanted sexual behaviour in the workplace (a poll for the BBC by ComRes).

The report calls for the government to focus on five priorities that will put sexual harassment at the top of the agenda for employers. These are:

1. Imposing a new duty to employers to prevent harassment.
2. Requiring regulators to take a more active role.
3. Make enforcement processes work better for employees.
4. Clean up the use of non-disclosure agreements (NDAs).
5. Collect robust data.

I’ll look at all these recommendations in a future blog, but it is no.3 on the list that catches my attention. On releasing the report, Chair of the committee, Maria Miller MP, said: “The lack of appropriate support for victims within the workplace cannot continue. The burden falls unacceptably on the individual to hold harassers and employers to account when they will already hesitate to do so due to fear of victimisation.”

The report recommends a statutory code of practice that sets out what employers should do to tackle sexual harassment. This code should set out a good practice guidance on matters including:

• reporting systems and procedures and what employers should provide as a minimum, including guidance on anonymous reporting;
• support for victims and steps that should be taken to prevent victimisation of complainants;
• how to investigate and record complaints, including a presumption that all complaints should be investigated unless there is a compelling reason not to;
• how to identify when sexual harassment allegations may include criminal offences and how to conduct any investigation in a manner which does not prejudice any potential police investigation and criminal prosecution;
• training, induction, risk assessments and other policies and practices.

I believe it is only a matter of time before these recommendations or ones along similar lines are introduced. In the meantime, I expect tribunals to hold employers to increasingly high standards when conducting sexual harassment claims.

So what can employers do?

Employers would be well advised to put in place robust procedures now to deal with such claims and to ensure they are adhered to fully if a claim is made.

My advice in these circumstances is, that once an employer has robust procedures in place, they must commit to implementing them. The problem with sexual harassment claims is that even where these procedures exist, an individual may not know or be too intoxicated to realise when they are crossing boundaries.

Failure to deal with a complaint appropriately can lead to reputational damage to an employer and, potentially, a higher compensatory award being made. That’s why a detailed, clear road map of the examination of the issues is so important.

If a complaint gets to a grievance stage, or even earlier, the employer should obtain legal advice from a solicitor who will then work with either an internal or external HR consultant to ensure that the complaint is properly investigated and dealt with. No assumptions should be made either way as claims can be made not only by the complainant, but also by the person being complained about if they feel they have been treated unfairly in any investigation.

Written by Thalis Vlachos, Employment Law Partner at gunnercooke.

To discuss any issues relating to sexual harassment in the workplace, please get in touch for a confidential discussion.

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