This week, the Equality Commission for Northern Ireland has released statistics confirming a 31% increase over the past 5 years of complaints alleging sexual harassment in the workplace.
With an unprecedented number of high profile sexual harassment allegations saturating the media, and the #MeToo and #TimesUp movement taking social media by storm, sexual harassment in every walk of life has rightly been brought into sharp focus in recent months. From Hollywood to Westminster, no workplace is exempt from allegations of sexual harassment; nor is any workplace exempt from conduct which could amount to sexual harassment – whether during, or outside working hours.
It is critical then, that employers ensure that their current policies and practices in relation to sexual harassment are adequate and stand up to any possible scrutiny, bearing in mind that employers can be held responsible for employees’ actions through the principle of ‘vicarious liability’.
What is sexual harassment?
The legal definition describes sexual harassment as:
'unwanted conduct of a sexual nature, which has the purpose or effect of violating a person's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.'
What is important to note about this definition is that it is conduct which 'has the purpose or effect of creating such an environment'. Therefore, a Tribunal will place greater focus on the complainant's perception and subjective viewpoint, rather than the perpetrator's intention.
It is well-established that one single incident can be enough to constitute harassment. While unwelcome sexual advances or touching are perhaps the most recognised forms of sexual harassment – sexual harassment can also include jokes or comments of a sexual nature, the display of pornographic photographs or drawings or sending emails with material of a sexual nature.
Is it just 'banter'?
It is quite common in Northern Ireland for employees to term unwanted conduct as 'banter.' However, this is not a defence to allegations of sexual harassment (or indeed harassment of any kind).
This common attitude in NI could explain the higher rates of sexual harassment allegations when compared to our neighbours in England, Scotland, Wales, and the Republic of Ireland. Recent research conducted by ACCA suggests that 17% of workers have witnessed someone sexually harass a colleague. This is 9% higher than in any other UK region or indeed Ireland. Notably, 100% of those surveyed in NI believe that they act ethically in work. The disparity between these statistics could indicate the mis-interpretation of the term 'banter' in the workplace in NI and a dangerous 'naivety' amongst workers.
How can employers mitigate risk?
The first step towards changing this attitude is to have clearly set out policies and training, that identify what sexual harassment is, what is and is not acceptable, that complaints will be taken seriously and that unwanted conduct will not be tolerated in the workplace.
HR and all levels of management should receive training on sexual harassment, what constitutes sexual harassment, relevant law and workplace policies, and how to respond to complaints of sexual harassment. In most workplaces, training for all staff may be appropriate.
Employers should have a clear zero tolerance approach to sexual harassment, policies which reflect that and which are applied in practice. Use of social media and workplace equipment (e.g. work phones or laptops) should be taken into consideration when formulating policies on sexual harassment. All existing and newly appointed employees should be made aware of these policies, reporting procedures and their rights and responsibilities regarding workplace sexual harassment.
Policies should also be clear on an employee's right to appeal any decision reached (whether that be a decision reached under your bullying and harassment policy, dignity at work policy, or whether a separate decision has been reached against the alleged harasser under your disciplinary procedure). It is prudent to place your policies and procedure under regular review, to ensure that their contents are clear and concise, that practically the process works for your particular organisation and reflects good practice guidance.
Some employees complain of a 'culture of silence' in the workplace, whereby victims of sexual harassment are reluctant to speak out for fear of 'rocking the boat' or being seen as a 'nuisance' by management. Employers must take steps to ensure that no such culture exists and should instead foster principles to encourage reporting of genuine concerns. Without this positive culture change, the policies and training referred to above are of no value.
What to do if someone complains of sexual harassment
If allegations are raised within your organisation, your first port of call should be your Anti-bullying and Harassment policy / Dignity at Work policy. A thorough investigation into the allegations should be conducted as soon as possible. How to conduct the investigation depends on your policy and the circumstances of each case.
It is crucial for an employer to address any allegations of sexual harassment sensitively and in a confidential manner and both the complainant and alleged harasser should be assured of this throughout any investigation. In some cases, you may wish to consider whether any temporary measures should be put in place during the investigation – for example – would it be appropriate to move an employee to a different area in the office or a different role on a temporary basis while the investigation is carried out, or in extreme cases, is it necessary to suspend the alleged harasser pending investigation?
Whatever the decision of the investigation may be – this should be communicated to the complainant and, separately, to the alleged harasser. If the allegations are upheld, appropriate follow up action to include disciplinary proceedings should be taken – and the goal of a safe workplace for all re-established and promoted.