Hello, what was this session in which we're going to look at the topic of sexual harassment. We're going to start off by understanding how harassment is defined legally. And then we're going to look at the way that uh allegations of harassment should be addressed in the organization thinking about issues such as policies and procedures, how to serve court an individual through the process. And also thinking about grievances. Harassment has become a big topic. And as you may have listened to some of the debates that there have been in the media about behavior and whether it is or isn't harassment. One thing that definitely I've noted is that people have very different views on what is and isn't acceptable behavior. What we in the workplace need to think about is the definition of harassment in the law. And harassment is defined in the Equality Act 2010 as unwanted conduct related to a relevant protected characteristic which has a purpose or effect of violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual. So, what I'd like to do is just go back over some points about this definition first of all, it's unwanted conduct and there is an element here uh by which we are thinking about what the individual feels about what is going on. So if an individual says I don't want this to be happening, it shouldn't happen. And so there is a certain subjectivity to the definition, almost, you could have a situation where you've got an open plan office and there's a certain amount of banter going on and some employees find it great fun and join in and love it. And other employees actually find it to be offensive. If an employee finds it offensive, it should stop related to a relevant protected characteristic. Now, within the Equality Act 2010, there are just nine protected characteristics, age disability, gender reassignment, marital status and pregnancy, a marital status as your partnership, sorry, maternity and pregnancy, race, religion, belief, sex and sexual orientation. Now, if the behavior relates to something else, then it's not a claim of harassment that can be brought under the Equality Act 2010, but it doesn't mean that it's acceptable behavior in the workplace. There still should be a question mark over whether there needs to be some intervention. So if for example, somebody is teased endlessly about the football team that they support, that is not a protected characteristic under the Equality Act 2010. But if the employee is getting distressed about this and it sort of moved beyond a little bit of banter into something where the employee really isn't happy and the employer knows that and does nothing about it. The employee could argue that it's a breach of the implied term of mutual trust and confidence, the implied term that the employer will look after the employee in the workplace. So that's the first bit of the definition, the purpose or effect. The next words that I wanted to pull out, it doesn't matter what the person who is doing the harassment intended. So it could be that there is an employee who keeps commenting on another employee's appearance as saying how lovely she looks and she finds that rather uncomfortable and just doesn't want that attention. Now, the alleged harasser in this situation, the person making those comments might have no intention whatsoever of harassing and may actually think that what they're doing is very nice because they're complimenting the individual. But if it has the purpose or effect of violating the individual's dignity, then it can be harassment. The other thing to notice from those important words is that it doesn't have to be behavior that is directed at an individual. So if it has the purpose or effect of uh violating dignity or if the behavior is creating this intimidating, hostile, degrading, humiliating or offensive environment, it doesn't matter whether it's directed at the individual, they could still bring a claim of harassment. For example, let's say that an individual works in an open plan office and there is a lot of teasing of an employee who's homosexual and the employee who is homosexual finds it quite fun. Joins in with it doesn't find it offensive at all. But there is another employee who is or isn't homosexual, it doesn't matter who finds it all a bit, a bit offensive. A bit rude, a bit degrading, a bit humiliating. They could still bring a claim of harassment even though that behavior is not directed at the. And we also again come back to this subjectivity, intimidating, hostile, degrading, humiliating or offensive, what you find to be intimidating, hostile, et cetera. And what I do might be different, that's not important. What is important is that if somebody is finding it offensive, it should stop. So that hopefully gives some insight into what harassment is. And of course, in today's session, we're focusing primarily on sex harassment, but it could be harassment relating to any of the protected characteristics. Now, it is important that an organization has a harassment policy and it's important for a number of reasons. Firstly, it's important to say that an individual who is on the receiving end of harassment has some way of knowing what they can do about it. And it's also important that if somebody is accused of harassment, they can go and see what the process is and what the employer is going to do because it could be that the person that's accused of harassment is hugely upset by this, that they've already said they thought they were just having a bit of fun or, or saying something nice and, and, and now they're facing a harassment claim and, and they are really, really distressed by that, really distressed, that their behavior has been interpreted in that way. And it's important that we remember that, that there are some people who engage in harassment and, and they do it to upset people, but there are others that don't. So what should a harassment policy include? What it should include examples of harassment? Now, this should always be clearly stated as these are examples and they are not an exhaustive list because if the policy says harassment is and gives a, a list of examples and then somebody does something that's not on that list. It's gonna be very difficult to argue that it's harassment. So it always should say these are examples and they're not an exhaustive list and examples of harassment could be inappropriate comments, it could be touching, it could be um excluding people from events because of a protected characteristic. All these sorts of things could be a potentially harassment car, excuse me. And the policy should say what the individual should do and should give them some options. Most policies are probably going to say that the first step for the individual is to raise the issue with their line manager. But what if it's a line manager that's doing the harassment, then there should be an option to go and talk to someone else or what if it is sexual harassment. And the line, the individual is a woman who's, who's a risk, the complainant, the person who's being harassed and the line manager is a man and he's great and he's not doing anything that could be seen as harassment, but the employee just doesn't feel comfortable talking about it with a man. There should be the option there as well of talking to somebody of the same gender saying report to the line manager or if that is not appropriate or the employee doesn't want to do that, then there should be the option of talking to another manager of the same sex as the person who's being harassed or if there is an hr department going and talking to the HR department and then the policy should set out what the employer is going to do. And the first step always has to be an investigation. Not that anybody is saying if you uh raise a complaint of harassment, we won't believe you. But there has to be an investigation because the employer has a duty of care to both the person who's being harassed and to the person who's an alleged harasser. And it's important that at first, there is uh uh innocent until proven guilty. And so the investigation is approached with an open mind and the uh policy should set out how that investigation will be carried out. And that then there'll be a meeting with the complainant to talk about the findings of the investigation and that the complainant will be told what action is being taken with regard to the respect for the confidentiality for the harasser as well. So it may be that the employer isn't going to tell the uh, person who's been harassed exactly the full detail of the conversation that's been held with the person who did the harassing. And the policy should also say that if harassment has taken place, the organization will take that very seriously. And that could be a disciplinary offense and in serious cases, it could lead to the summary dismissal. So dismissal without notice of the harasser. Now, of course, a procedure will still be gone through. So the policy is going to refer the uh the reader to the disciplinary policy as well. But if what has happened is gross misconduct, then the employer doesn't have to go through the process of disciplinary warnings. If what has happened is unacceptable but not serious enough to warrant dismissal, then it should say that the individual might be given a disciplinary warning. And of course, all the time we're using language like might happen because it depends on the circumstances and what has has been discovered from the investigation and what should you do if somebody comes and tells you that they're being harassed? Well, first of all, it's about listening to the individual and being empathetic. So of listening carefully to what they're saying, to being supportive. But it's really important to, at this stage be supportive, not to doubt what they're saying, but to be aware that the organization is going to have to carry out an investigation. And so you shouldn't be making any promises that, oh, yes. Um, the alleged harasser will be called in today, they'll be suspended and they'll be dismissed until the investigation has happened. It's not possible for you to make any, um, uh, confirmation of what's going to happen as a result, guide the individual about what action they should take. And here it might be useful to look at the harassment policy together and to read through it with your colleague and to point out what they should be doing, it's also important for you to think about what's being said to you and how much you can keep confidential. Now, if the individual comes to you and says, I don't want you to tell anybody about this, but I'm being harassed, your response should be, I will respect your confidentiality. But if what you're telling me means that there are other employees involved, other employees, particularly more junior employees who, who might not have the confidence to speak up, who are also being harassed. Well, if what you're saying is so serious that, that it, it just cannot continue, then I might feel that regardless of the fact that, you know, you're begging me not to tell anyone I've got to. And if so, I will agree with you who I'm going to talk to and I'll tell you what I'm going to say and I will respect your confidentiality as much as I can. But if what you tell me is you're being harassed and so is somebody else and that somebody else doesn't have the confidence to speak up, then it might be that I've got to speak and also you might want to signpost the individual to support. And it's really important to remember that counseling is, is a skill. It's something that counselors are trained to do. And unless you're a trained counselor, you haven't had the appropriate training to help the person work through what's happening. And therefore, it's important to sign posts, the individual to where they can get support if your organization has an employee assistance program. So, so an outside organization that employees can phone up and talk to confidentiality and maybe seek some counseling from. You might want to sign posts, the individual there. Remember that there are organizations such as the Samaritans who will listen to anybody who is distressed. It doesn't have to be somebody who is so distressed that it's making them ill or that they're thinking of harming themselves. The Samaritans can help at any stage. It might also be that you recommend to the individual that they go and talk to their, to their GP to their doctor, but don't get into giving counseling if you don't have the skills and the training to do that in your supporting the organization. It's important that you explain to the individual that there will be an investigation and you help the complainant to understand what is happening at any formal meeting. So if the individual that has come to you for support, um raises a formal grievance, they are allowed to be accompanied at the formal meeting by a colleague or a trade union representative. So if you're asked, will you come along and be my representative, then you can do that if you want to an informal meeting. So this could be where an employee says, well, I'm going to go and talk to my line manager about it and I'm just going to have an informal chat first of all, because I want to understand what's going to happen. If the employer asked you to go along with them to that meeting because it's not a formal meeting, then legally, they have no right to have a representative. But in most organizations, it would be accepted that somebody might want to have a colleague there with them. So again, if you're asked to go along, um if the employer agrees to you that you can, if you want to and what you should be doing at this meeting is being that second pair of the ears because in a situation of harassment, it's quite often the case that somebody is very distressed. So they might actually not hear all that said, I don't mean physically not hearing, but because they're distressed, they, they might not just take it all on board. So what you can be is that second pair of ears you're less involved with what's going on. So you're going to be less distressed um and make notes so that after the meeting, you can talk to the individual about what was said and clarify any points of confusion. Um At a formal meeting, you can ask questions on behalf of the individual. You can put um the facts that the individual wants communicated, you can do that for them. But if the employer said to the individual, I want you to answer this question, I want you to tell me, then um they can request that. So don't take over the meeting but think of the sorts of questions or points that, that you think the individual needs to have the answer to it may be what's going to happen next is a, as a very straightforward question and ask those questions and, and take notes so that you can remind the individual of what's being said. And it is important as we've said that the alleged harasser is treated fairly and they are innocent until the investigation has happened. And it's concluded that they're not innocent and it might be that the investigation concludes, sir, what has been alleged is all completely wrong. So it's important that if the person that has come to you for support is a person that's alleged harassment that you don't react to the alleged harasser in any way differently to what you normally would have done. Don't get involved in discussions or arguments with them. There's going to be an investigation that's going to be carried out and allow that to take place if you did get involved and you did start throwing allegations around, it could compromise the investigation And of course, you could be in a situation when you're supporting the individual. But the person that comes to you for support is the person that's being accused of harassment. So it could be somebody who is hugely distressed because they've been accused of harassment. They say it's all a pack of lies or they say, yeah, what happened did happen. But the way it's been interpreted is never the way that it was men. Again, um if the individual is called to a formal meeting, so a formal disciplinary meeting, they're entitled to be accompanied by a colleague or a trade union representative. And you could be asked to be that person. And again, it's the same role, the second pair of ears, they're taking notes, asking questions um as appropriate. But again, be professional support, your colleague. If, if that is what you think is right to do and don't get involved in going and approaching the person who's made the allegations and getting into an argument or a debate with them about whether what has happened is harassment or not keep away from that because there will be an investigation and that will deal with any wrong allegations that have been made that there is the A CS code of practice disciplinary and grievance procedures that employers have to follow. And this does set out a grievance procedure that has three simple steps. The complainant writes to the employer, setting out the issues in writing, the employer arranges a meeting to discuss the issue and then it's most likely going to have at least two meetings. Cos first of all, they're going to hear what the complaint is and then most likely they're going to have to adjourn to go away and investigate and then they're going to come back and talk to the individual about what action if any they're going to take. And if the complainant is not happy with the outcome, then, then they can appeal that outcome. Now, as already said, if that's a formal meeting, then legally under the Employment Relations Act 1999 the individual is entitled to have a colleague or a trade union representative with them. Um And you could be present at all those meetings. If you're asked to be the representative, it could be useful to encourage somebody that comes to you to, to put their grievance in writing. Um and to set out everything that's happened, the different incidents. If there's been a number of them, the dates, if they have that recollection just so it gives the employer a very clear explanation of what the complaint is. However, if your colleague doesn't do that, it doesn't mean that the employer does not have to investigate, they have a duty of care to all employees. And if there's alleged harassment, then it would have to be investigated. And finally, it's just worth thinking about harassment. As I said, at the start, it's a topic that has become talked about a lot with the Me Too campaign, um which has come about following allegations, very serious allegations of harassment and sexual assault in, in the media sector. What is the culture of your organization? What is acceptable behavior? What is the behavior of senior management like? Do they set an example that clearly shows that harassment is not acceptable in your organization? Is there a robust response of anything that appears to be harassment? One person on their own can't change the culture of an organization, but they can challenge it and they can bring to management's attention. Examples of things that are clearly unacceptable and need addressing and really addressing the culture of an organization such as harassment is just not acceptable, is an important first step in making sure that harassment just doesn't happen in the organization. So thank you for missing and I hope that you found that useful.
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