Over one in two working women in Britain have experienced sexual harassment at work, according to a TUC and Everyday Sexism Project survey.
That rises to a shocking nearly two thirds of women (63 per cent) of women in the workplace if you’re aged between 16 and 24.
One effect of the recent #MeToo movement calling out men for sexual harassment and abusing their positions of power has been an increased number of internet searches for the term “sexual harassment.”
Happily in the UK, the same sexual harassment legislation applies to every size of businesses, big or small, as it all falls under the heading of discrimination.
And discrimination is something the law takes very seriously indeed. A badly handled discrimination case could you leave you, as a small business, tens of thousands of pounds out of pocket. It could also cause you serious reputational damage.
Laura Ranaghan, HR consultant at Citrus HR, says: “The content of the policy that deals with sexual harassment at large companies such as M&S will be the same sort of process that you will need to follow in your own small business even though they have the advantage of large HR departments with which to handle complaints.”
So, what is the right way for any small business to handle an allegation of sexual harassment?
What is sexual harassment?
Sexual harassment is unwanted behaviour that intimidates or causes someone to be offended or to feel violated in any way. There are the more easily recognisable examples of unwanted physical contact or more serious assault. However, It doesn’t always have to be physical contact — it could be lewd jokes or circulating pornographic images in a group chat, or making comments about a person’s appearance for example.
It could also be as seemingly innocuous as repeatedly asking a colleague to go out for an unwanted drink after work or what could be construed as light-hearted laddish banter or a joke in bad taste. A sales rep who thinks he’s being funny by being flirtatious can be intimidating and frightening to a female staff member.
However, all this is very much on a case-by-case basis as it isn’t possible to create a list of conduct to give to staff that covers everything that is potentially harassment and everything that is not. What one person defines as unwanted attention or finds offensive could be acceptable to someone else.
One of the difficulties that can happen in a workplace is where someone complains that they feel harassed by a colleague and the colleague says that didn’t realise that their behaviour was offensive or unwanted. Even if the person complained about didn’t intend to harass, the emphasis remains on the person who feels harassed and how it’s left them feeling and not what was intended.
What’s the first thing I should do?
If someone raises a sexual harassment complaint, they have the option of it being handled either informally in the first instance or formally through a grievance procedure anti bullying and harassment procedure if you have one.
This grievance procedure should be known to you or you can consult standard documentation at workplace dispute resolution service ACAS.
First, establish whether they or not they want to have it dealt with formally or informally. Regardless of the answer, you will have to investigate.
Karen Falconer HR knowledge manager at HR Solutions, says: “I would always advise the employee who’s alleged the harassment what it is that you’re going to do, your approach and what the timescale will be .”
- Take any complaint seriously, no matter how inconsequential you may regard it. Have a private conversation with your upset staff member.
- Next, check if you have an existing anti-harassment or bullying or sexual harassment policy in place. You can find a useful guide to sexual harassment from the dispute resolution service Acas here
- Take a contemporaneous note of the conversation you’re having with your harassed employee for your future reference
- Ask if they want to raise a formal complaint and put everything in writing?
Do I need to speak to the person who’s the subject of the complaint?
Yes, you do. You need to hear their version of events as well.
Once you have gathered enough information, you must have a meeting with the person accused of the harassment as soon as possible – ideally the same day — especially if what has been alleged is gross misconduct. You may need to place them on immediate suspension (or an appropriate alternative).
On the other hand, the alleged perpetrator may be completely justified in saying that it’s all been a misunderstanding once you have investigated what has happened.
“There’s room for reasonableness in the eyes of a layperson when it comes to sexual harassment,” says Falconer.
Ideally, you want the two people involved to patch things up between them and not let things escalate any further. Obviously, this is only appropriate where allegations are not serious enough to be potential gross misconduct.
What if the person being complained about is key to my business?
That’s irrelevant. You must put aside work performance or seniority. By ignoring the Equality Act 2010, you become both liable and vicariously liable for discrimination claims which can be for unlimited amounts. Plus there could be financial penalties on top for injury to feelings.
What if I don’t believe a version of events?
Regardless of whether the person who made the complaint has asked you to treat it formally you have the option to escalate matters to a disciplinary hearing yourself if you believe that the conduct meets that threshold. You would need to let the person know that this is what you were going to do. .
What happens if it escalates to a formal complaint?
If there was no room for an informal resolution you need to deal with the complaint formally. You escalate it to follow your grievance policy or anti bullying and harassment policy You would need to invite the person who is complaining and the person who the complaint is raised about to a formal meeting. It is usual to give 48 hours’ notice and the right to bring a trade union rep or work colleague. You will need to take notes of these meetings and carry out any further investigations with any witnesses before you reach your conclusions. The person who made the complaint will have a right of appeal against the decision if they are not happy with it.
The staff member could still appeal to a higher authority within your organisation ideally who has not been involved before or this is the moment where you look for external support through an external HR advisor. Remember, the external HR adviser could go against whatever you decide at the end of your internal investigation, if you’ve handled things badly.
“We do indeed do that, as unpopular as it is sometimes,” Falconer says.
This higher authority’s outcome however will be final.
What happens if the complainant is still unhappy?
Although it is the end of the road internally, the staff member could still seek external support.
For the most part, employees can only lodge employment tribunal claims once they have been with a firm for over two years. But that is not the case with discrimination.
Again, they could go to Acas, which gives impartial advice on employment matters and whether procedure has not been followed. Acas could then recommend that they go for early conciliation.
What is early conciliation?
This is a step that was brought in a few years ago prior to somebody going to an employment tribunal.
Designed to reduce the amount of cases going to industrial tribunal, early conciliation is a free way for employees to settle outside of a formal hearing. Acas will provide a conciliator who contacts you.
“Because the employee is saying they want to settle outside of tribunal – because if it’s got this far, the questions to consider are do you believe they have a case and how much are you willing to pay?” says Falconer.
What kind of fines could I face for mishandling sexual harassment?
There is no upper limit technically because sexual harassment comes under discrimination law, where there is no cap on compensation for loss of earnings
The harassed staff member who feels their allegation has been badly handled could either resign and then make a claim for constructive dismissal and for sex discrimination. Or they could carry on working for and still make a claim for sex discrimination.
An employment tribunal could make a separate award for loss of earnings plus the tribunal can award injury to feelings costing anywhere over £45,000 up to £900,000 depending on the seriousness of the distress caused.