Sexual harassment in the workplace is a hot topic. The #MeToo campaign has brought such behaviour into the media spotlight, which will undoubtedly lead to an increase in complaints. It’s not just Hollywood that has an issue, but many businesses across a number of sectors.
In March 2018, the Equality and Human Rights Commission recommended that a mandatory duty and code of practice be introduced with the aim of eliminating sexual harassment in the workplace by transforming workplace culture, promoting transparency and strengthening legal protections.
Who is protected?
Both female and male employees have the right not to be sexually harassed in the workplace pursuant to the Equality Act 2010.
Are you liable?
As an employer you are vicariously liable for acts of harassment carried out by members of your staff unless you can show you took all reasonable steps to prevent that harassment occurring.
It is also worth remembering that the conduct does not necessary have to occur in the working environment. Employees can bring complaints when the conduct occurs away from the physical working environment if it is an extension of the workplace, for example at a social function organised by your practice or at a works outing. The Employment Tribunal will study the facts of each case when considering whether or not an employer is liable.
What if there is an existing relationship between the complainant and the perpetrator?
In some cases, employees will be involved with each other outside of the workplace. This scenario makes it even more difficult to establish an employer’s liability. Case law has established that behaviour by a male employee to a female employee which happened in the workplace following the breakdown of a personal relationship amounted to sexual harassment for which the employer was vicariously liable when the male employee was in a more senior role than the female employee.
What should I do if I receive a complaint about a member of my staff?
Any complaint should be properly investigated. Depending on the seriousness of the allegation, you should consider suspending the alleged perpetrator pending that investigation being concluded. In the absence of any specific policy, the complaint should be treated as a grievance and dealt with under the grievance procedure.
If, following the investigation, the grievance is upheld, then the perpetrator should be dealt with under the practice’s disciplinary process in the usual way and remain suspended on full pay until the outcome of that process.
What are the risks of ignoring a complaint?
Ultimately, an employee could bring a claim against the practice in the Employment Tribunal. All judgments are now automatically published online for the world to see, which could cause significant reputational damage to your practice.
Can I dismiss the alleged perpetrator?
Assuming the employee has requisite length of service, if you do not follow a proper procedure to end the employment, you will be at risk of an unfair dismissal claim.
Can I terminate one or other’s employment using a settlement agreement?
Settlement agreements are commonly used to settle employment disputes and are attractive to employers where they are faced with an accusation of inappropriate behaviour as it saves them having to make a factual finding about what happened.
Settlement agreements will usually contain a non-disclosure clause preventing the recipient from disclosing the background to the agreement to third parties. In cases of sexual harassment, the complaint may amount to a protected disclosure under Section 43B of the Employment Rights Act 1996 – sexual harassment is in breach of the Equality Act 2010 and may also endanger the health and safety of the complainant. As such, there is argument as to whether that non-disclosure clause will be valid.
FURTHER ADVICE
For further advice on this subject, contact the author, Clare Riches, at: clare.riches@rudlings-wakelam.co.uk
