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Three reasons employers will face – and lose – sexual harassment claims and the one thing you can do today to protect your business

February 23, 2024

There are three reasons why employers are staring down the barrel of sexual harassment claims, and there’s a good chance that at least one will apply to your workplace.

1. You have an Anti-Harassment policy, but your staff have limited or no working knowledge of the policy. 

There are very few staff handbooks that do not include an Anti-Harassment policy, Dignity at Work policy or an Equality policy and most will include: a zero-tolerance statement; a list of examples of behaviour which could be considered as harassment; and a procedure for employees to follow if they believe they are the victim of harassment. Job done. Box ticked. Right? Wrong. 

There’s little point in having any policy if it’s not brought to employees’ attention. It is hoped that, in most workplaces, an employer wouldn’t envisage staff having to refer to an Anti-Harassment policy on a regular basis – and if they do, there’s a serious underlying problem there, that needs to be addressed – but even so, staff need to know, firstly, how they can raise a complaint and secondly,  when they do, that it will be dealt with sympathetically and appropriately. For managers, they need to understand their responsibility for creating and encouraging a culture that does not tolerate sexual harassment including identifying any potential acts of harassment and acting swiftly, as well as how to deal with any complaint. 

It’s not enough to ask employees to sign a contract that states ‘your attention is drawn to the policies and procedures applicable to your employment, which are contained in the staff handbook’ (or similar). Employers must do more than expect staff to familiarise themselves with such a policy.

There’s also little point in having a policy unless it’s actually fit for purpose. From 25 October 2024, employers will be under a legal proactive duty to take reasonable steps to prevent sexual harassment of their employees in their workplace, and while it is only one part of preventing sexual harassment, this duty does mean that a generic Anti-Harassment policy will not be fit for purpose. You’ll need a Prevention of Sexual Harassment policy that is prepared especially created for your workplace. That policy will inform everything else you must do including reviewing and updating other existing policies (discipline and grievance, data protection etc.), creating a reporting register and undertaking risk assessments.

2. The lack of a formal complaint of sexual harassment means no action is required.

This may come as something of a surprise, but managers shouldn’t expect employees to raise a formal complaint of sexual harassment before they are required to do anything. As part of their responsibility for creating a zero-tolerance culture, a manager should be proactive when a concern about the behaviour of a colleague is raised, even if sexual harassment is not alleged or the complainer indicates that they don’t want to make it formal. Exactly what action a manager should take will depend on the circumstances, but at the very least, they should consider the possibility that there might be more to the complaint than meets the eye and be mindful of the complainer’s particular circumstances which might explain their reluctance to make things formal including their age, experience in the workplace and the balance of power.

Where no complaint is made, whether formal or informal, it is nevertheless a manager’s responsibility to ensure that a culture of harassment doesn’t creep in and unacceptable behaviour doesn’t go unchecked. Workplace banter isn’t always ‘just a bit of fun’ and being work friends doesn’t excuse sexual harassment.

However, employers shouldn’t assume that managers will know how to do this or even that they know that they have these responsibilities. It’s all too easy for managers to focus on ‘the day job’ or assume it’s HR’s job or, worse, that employees are self-policing the workplace. 

3. Sexual harassment means sexually motivated behaviour

Sexual harassment is often thought to be driven by sexual desire and targeted at an individual, for example, a sexual advance or crude comments about appearance. However, the reality is that this is broader in scope and, despite the widely held belief that we would never behave this way towards another and we would, of course, recognise and call it out if we witnessed others do so, in general, most people don’t appreciate just how many behaviours can be considered sexual harassment.   For instance, circumstances that feel appropriate to those involved can cause concern for others not directly involved but who see or overhear it, even if nothing is ever targeted at them and it is a one-off incident.

This lack of knowledge can contribute to an unhealthy workplace culture where sexual harassment is not recognised and, worse, accepted, which can result in employees not coming forward with their concerns.

What is the one thing you can do today to put things right in your workplace and prevent sexual harassment in your organisation?

Take out your diary and, on a date in the not too distant future, write the following:

Training session for managers on the prevention of sexual harassment in the workplace.

Why?

Because you can’t afford not to. Awards for sexual harassment are uncapped:

Don’t know where to start?

We can provide training for your managers. It is intended that this training can be referred to in any reasonable steps defence. In addition to training, we can also help you with other measures that will demonstrate ‘reasonable steps’ in your workplace to ensure that you meet the new legal proactive duty. For more details, please contact Donna Reynolds. Donna Reynolds is accredited by the Law Society of Scotland as a Specialist in Discrimination Law.

Nicola Burns

Nicola Burns

Director of Operations

Marketing Team

+44 1382 342217

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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