Allegations of sexual harassment are often one of the most widely reported cases when they come before an Employment Tribunal – and can be one of the most damaging. What should businesses do to try and prevent such accusations in the first place and stop them hitting the headlines?
When an employee brings a claim against a colleague for harassment, they will usually add the employer to the claim on the grounds that the employer can be liable for the actions of their employees.
However, an employer will have a defence if they can show that they have taken all reasonable steps to prevent the harassment.
Five things employers can often do better.
Have a clear policy
Employers need to make it clear that sexual harassment in the workplace will not be tolerated and if substantiated will lead to dismissal for gross misconduct.
While employees should not need this spelling out, having a policy – and making all employees aware of it makes your position crystal clear. It also means you can point to the policy should you face a claim and show the employee was aware the behaviour would not be tolerated and the consequences of misconduct.
Any policy should make clear that use of the word ‘banter’ to excuse sexual harassment in the workplace will not be tolerated.
Give training to all employees
It is not enough to simply have a handbook or a policy. Employers must have taken positive steps to prevent the harassment. Training needs to focus on how sexual harassment is unacceptable in the workplace. Make sure a record is kept of who attended the training.
An employer should be prepared to admit they believe the victim’s allegation. Businesses will often be reluctant to thinking that it will get them into trouble. If there is clear evidence that sexual harassment has taken place then it is wise to admit it and deal with it. Otherwise, the employer is handing the victim an opportunity to argue the employer was behaving unreasonably, resign and bring a constructive dismissal claim. From experience, generally the victim is satisfied to be believed and that action is being taken without involving the employer in a Tribunal claim.
Act consistently – regardless of position
If action is not taken against a senior director found to have committed sexual harassment but a more junior employee is dismissed, then this could be an unfair dismissal.
Do not make assumptions based on the gender of the complainant
Men can be harassed by women, or harassment can be by someone of the same sex. All such allegations should be treated in exactly the same way.
Experience in Tribunal shows that an employer will be more inclined to believe a woman in any allegation of sexual harassment against a man. An employer must treat any allegation seriously and sensitively. Harassment commonly happens without an independent witness so it will often be one’s word against the other.
However, if a woman’s allegation is believed without supporting evidence then this may lead to a claim for sex discrimination by the man, who will say that the employer has made stereotypical assumptions that men will always be the harassers.
About the Author
Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.
He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.