Shoosmiths

Is it just you or is it #MeToo?

Question

If sexual harassment doesn’t seem to be a problem in the workplace, then does anything really need to change?

Answer

#MeToo – still trending

Over a year ago, #MeToo hit the headlines following a wave of allegations against Hollywood film producer Harvey Weinstein. The social phenomenon paved the way for millions of others around the world to speak out, forcing many employers to take a look at how they were handling sexual harassment claims in the workplace.

In the same year, research was carried out for the BBC claiming that, of those surveyed, 40% of women and 18% of men had experienced unwanted sexual behaviour at work at some point.

With numerous celebrities being named and shamed, so came the rise of negative publicity accusing women of jumping on the band wagon of #MeToo and complaints of the movement being some sort of witch hunt of men with deep pockets. On the other side of the coin, many employers were finding that the social movement had had no impact on their workplaces and so were not taking any additional steps to prevent sexual harassment, seeing it as an unnecessary use of resources.

So even though #MeToo still storms social media, has the cloud of pessimism and whispers of sham litigation left us with a reduced drive to improve?

In short, no!

Code of practice

Following a report from the Women & Equalities Committee published in July 2018, the government has announced that a new code of practice will be implemented, helping employers to better understand their legal responsibilities to protect staff and to tackle sexual harassment at work. Similar to the ACAS Code of Practice in disciplinary and grievance procedures, the new code of practice will not impose a mandatory duty on employers, but tribunals will have to take it into account when considering sexual harassment claims. However, unlike with a failure to comply with the ACAS code whereby the tribunal can uplift compensation, the tribunal will not have such powers with the new code.

This has caused some concern that the new code will be practically ineffectual in preventing sexual harassment as there is insufficient ‘punishment’ for non-compliance.

However, the government has promised that in addition to publishing the code, the Equality & Human Rights Commission will develop the code within its powers under the Equality Act 2010. Further, the government will consult on introducing a new legal duty on employers to prevent sexual harassment in the workplace and strengthening the laws on third-party harassment. In addition, and amongst other commitments, it intends to run awareness-raising work with ACAS, the Equality and Human Rights Committee and employers.

For now, employers already dealing with the challenges of Brexit and immigration issues may be relieved to know that new legislation on sexual harassment is unlikely to be imminent. However, this should not be a cause for complacency and instead employers are encouraged to be proactive in preventing harassment in their workplaces and preparing for the inevitable changes to come.

Understanding the law

It is important to understand the law, particularly when it comes to dealing with grievances and disciplinaries that relate to sexual harassment at work.

Sexual harassment is not a new area of law in England and Wales and is a form of discrimination covered by the Equality Act 2010. It occurs where, for example, person A engages in unwanted conduct of a sexual nature that has the purpose or effect of violating person B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

The two key elements that should be highlighted are:

  • The conduct must be unwanted. However, it is important to note that just because someone has put up with certain conduct for a time or has joined in with banter, it does not mean that the conduct is wanted. In addition, a one-off incident is enough and certain conduct will always be presumed to be unwanted unless proven otherwise.
  • The conduct must have either the purpose or effect of violating a person’s dignity or of creating a hostile or similar environment – which means the intention of the perpetrator is not always relevant, rather the effect the conduct has on the victim is key.

What can employers do now?

Employers should consider better education, training and cultural change to improve the situation for potential victims and employers alike.

An employer can put processes in place to help reduce the likelihood of inappropriate behaviour occurring and put itself in a position where it can better defend a claim of sexual harassment by showing that it took all reasonable steps to prevent the harassment from taking place. This could include:

  • training staff on what is acceptable conduct in the workplace;
  • sending regular reminders/briefings as to appropriate behaviours;
  • having clear procedures in place for reporting sexual harassment complaints; and
  • encouraging victims to report claims of sexual harassment.

On the latter, employers should consider how they can support victims of sexual harassment and enable them to make the complaint in strictest confidence. Tech companies are already developing new ways to empower employees to report misconduct in the workplace. Apps, such as the newly launched Vault Platform, allow employees to record, report and resolve matters of harassment while giving employers the opportunity to access the relevant information to assist them in dealing with the matter and analyse data to assist in taking well-informed courses of action to resolve the situation. This exhibits an innovative solution for employers that could support those with far-reaching employees working with a centralised HR team.   

The likes of Google and its parent company, Alphabet are currently undergoing investigation for allegations of mishandling sexual misconduct claims. While this comes down to allegations of pay-offs made to executives in an altogether different jurisdiction, the message is clear: this is a hot topic globally and should be at the forefront of every employer’s strategy. So whatever steps are taken, it is important that employers are demonstrating clear and meaningful change, whether or not it seems necessary at this point.

Stephanie Pye is a trainee solicitor at Shoosmiths. She is based at the firm’s Birmingham office.

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