A year on from the #MeToo campaign and our blog on sexual harrassment at Christmas parties, workplaces should reflect on whether their company culture and values provide protection against sexual harassment and sexism.

The campaign remains active on social media and has raised awareness around the world, making it a priority for government to take action and for businesses to take notice of their existing practices that are still hindering people coming forward.

As a result of the #MeToo campaign, reports were commissioned by the Equality Human Rights Commission (EHRC) in March 2018and the House of Commons Women and Equalities Committee (WEC) in July 2018. They detail how sexual harassment needs to be tackled by employers, with recommendations to the government to legislate and fill gaps in the law.

Until the law changes, what should employers be doing to develop a safe working environment?

Businesses need to create confidence by sending out a strong and consistent message that inappropriate behaviour, whether by employees or third parties, will not be tolerated and have measures in place to support this ethos. The repercussions of not having such measures can be, for example, costly tribunal cases, detriment to employees’ mental health and well-being, reduced productivity, reputational damage and difficulty in attracting and retaining the best people.

Policy and procedure

At present, businesses are not required to have a specific policy on sexual harassment. However, this may change if the government takes on board the EHRC and WEC’s recommendation of a mandatory statutory code of practice. An employer’s reliance on a grievance procedure may not be sufficient to discharge their liability; therefore, a pro-active approach needs to be adopted ensuring existing harassment policies:

  • Are made available during an induction process
  • Cover all forms of harassment, setting out the process for both informal and formal complaints
  • Confirm the support given during the process
  • Detail the investigation procedure with specific timelines
  • Have options for outsourced support such as health care providers, counselling or mediation

Companies should also consider carrying out risk assessments and questionnaires to identify what they can do better. Data recording of the type and nature of complaints should be collected on a regular basis to inform amendments to business practices.

Training

In our experience, employers do not always know how to respond to a complaint of sexual harassment. This is where training is essential at all levels and we would recommend:

  • Training managers on dealing with complaints of sexual harassment and the appropriate course of action to follow, explaining that complaints do not always result in suspension of the perpetrator
  • Employees too need to be trained on what constitutes unacceptable behaviour in the workplace, where they can access policies/procedures and to whom they can speak to if they want to complain both within and outside the business in the event of a conflict of interest
  • Clearly communicate the company’s commitment to preventing sexual harassment from/to third parties and the action it will take in response to any incidents or complaints.

Reporting

The EHRC conducted a survey highlighting the unwillingness of victims of sexual harassment in the workplace to report incidents due to several factors. These include how businesses do not take them seriously, fear of victimisation, senior employees being protected where they are perpetrators and lack of appropriate reporting procedures. Therefore, employers need to offer support to employees by:

  • Offering access to, or information on, helplines to support employees once they have reported the incident
  • Having a provision in the contract of employment to reassure employees that confidentiality will be maintained during an investigative process
  • Ensure that meetings are away or out of sight from other employees to again foster that confidence in a supportive workplace culture.
  • Have regard to the fact that men, as well as women, could be subjected to sexual harassment and avoid unconscious bias as this can be seen as discriminatory.
  • Respond to complaints promptly once an allegation has been reported even if it is a historic incident. Be mindful of the employment tribunal time limit of 3 months for employees to file their complaint of sexual harassment.

Zero tolerance

There is a duty on all business to raise awareness of sexual harassment in the workplace and create a zero-tolerance, inclusive company culture where employees feel comfortable reporting incidents. To support this culture, third party agreements should have a provision on sexual harassment and bullying which is actively enforced by all parties. There is a call to reinstate s.40 of the Equality Act 2010 to make employers liable for third party harassment; however, until this happens, businesses should be addressing how they intend to deal with such complaints. Volunteers and interns should also feel supported from harassment as they are not currently protected under the Equality Act 2010, and again there is a call for the government to extend protection to all individuals in the workplace, regardless of their status.

Whilst we wait for the government’s response to the recommendations by the WEC and EHRC, businesses can do a lot more to foster good relations in the workplace and stamp out the attitude that such behaviours are acceptable or are part of office banter or culture.