Sexual Harassment – What Employers Need to Know

hello. Welcome to this session in which we're going to look at sexual harassment, and the focus in this session is on understanding what harassment is just looking at one or two cases to help us understand that further and then looking at what needs to be done. How should you manage an allegation of harassment on Also, what can you do to try and reduce the possibility of harassment happening in the organization? And, of course, harassment has become. Sexual harassment has become quite a headline topic, really due to allegations that were made in the film sector and initially, and there have been a lot of discussions about sexual harassment at all sorts of levels. The difficulty is that quite often there isn't a common understanding of what is and isn't acceptable behavior. Afros working in organisations are starting point has to be the law. So what is Harris Hman? According to the law, it's covered in the equality at 2010 on. It's defined as unwanted conduct related to a relevant protected characteristic, which has the purpose or the effect of violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment For that individual on their awesome, important points to note about that definition. First of all, actually, it's worth just noting that it does say unwanted conduct related to a protected characteristic. So they are the areas covered by the equality at 2010 1 of which is sex and on. That's what we're covering in the session today. The definition, if we just go back up to it for a moment, refers to the purpose or the effect. So it doesn't matter whether the person that made the comments or did whatever was done men harassment to occur that is not relevant. What is relevant is the perception of the person who was on the receiving end. The other thing to note is that we have reference to the purpose or effective violating an individual's dignity or creating an intimidating, hostile, etcetera etcetera environment. You could have a situation where there is, say, an open plan Office Onda on employees who eyes female on There are a group of men who are making comments, toe Walter her off a sexual nature, and she finds it quite funny and she doesn't mind. But there's somebody else in the office who is listening and doesn't find it funny and doesn't think it's acceptable. And dust, mind and even day. The comments or ever are not directed at that individual. They could still bring a claim of harassment because for them, it still could be creating this intimidating, hostile, degrading, etcetera environment. So it could be that the person bringing the claim of harassment hasn't actually had any treatment directed at them. Another thing that is important to know is that Harris Hman could be one of N or could be a Siris of events. It could be one oven. If that is sufficiently serious now, what is sufficiently serious? Well, the courts blucher every situation based on the facts. So it could be argued that just one comment to somebody is not sufficiently serious. But if that comment was particularly offensive, yeah, that Wall Haman could be harassment. Or it could be a serious if silly. Behaving is a silly jokes of silly e mails being circulated on a lot of pointed comments that somebody, something like that, none of which on on the road is really body enough to be harassment. But when you add them together, it definitely is so it is important to neck that it could just be the one of them on another thing that is important to note is that just because somebody has joined in previously with banter, it doesn't mean that when they then take offense, it's no harassment on. This is something Teoh be particularly careful about, because sometimes an employee might join in with the sort of comments that being made might finally quite funny. And then maybe something happens, maybe something in their personal life. That means it's not funny anymore. Now, of course, the other employees don't know that on, so they carry on with the banter. But the employee is actually finding it offensive now, and this makes it really difficult for employees because, of course, we want have fun at work. We spent an awful lot of our hours at work and on. We don't want it to become a sterilized environment where nobody can laugh. But there's lots of things we can laugh about. There aren't potentially harassment on. This is always my argument back when people say, Well, just because somebody's taken offense today, that doesn't mean it's harassment. Well, yes, it is on and really there are so many things that we can talk about on dso much that we can't happen about that. We never need Teoh have anything happening that could potentially be seen the sexual harassment. Really, That's a message that we've got to get out to line managers that it's not a matter of saying, Oh yeah, well, the banters okay, cause everybody's joining in with their know if it's straight over a line is no okay. There's just having liquor at wanted to cases that illustrate some of the points that I made and also bring out some other points as well. So the first case here for Banska Cup, Askar versus Macquarie and another trading is Max Quality Foods 2000 and eight. Here, a colleague made a number of comments. Teoh, a female colleague, about how attractive she waas Andi. These were primarily compliments. He genuinely found her to be an attractive woman, but she took offense. It was unwanted comments. They were sexual by nature, and therefore this did amount to harassment. So this is a good point. A case to illustrate the point that the perception of the person that's on the receiving end of the comments or the treatment is really important, because if that individual finds it unacceptable, then it's unacceptable for that individual. Now the Moon Sai versus Five Ways Express Transport LTD. 2004 case is a really good point that to illustrate that the point I made earlier that harassment doesn't need to be directed at the individual happened in this case where there was the female employees, Movsar, who is working in an open plan office with a number of men, and at lunch times they would gather around a computer and they were looking at pornography. Now she didn't know for definite, but they were looking at pornography. But from the comments they made, she presumed that they were. They never showed anything to her. She never saw anything. They never made any comments to her about what was happening. They never asked her to join in, but she found it very uncomfortable to be a woman alone in an office with a group of men who were looking at pornography. And she was successful in arguing that what they were doing was creating an intimidating, hostile, etcetera, etcetera environment for her on She waas, right? They were actually looking at pornography, so that emphasizes the point that it doesn't have to be directed at an individual. We then have the case for in Situ Cleaning Company LTD. In another versus Heads 1995. On this occasion, a one off comment was made to a woman about her breasts. It was a one off comment. It was never repeated, but this was found to be sufficiently offensive for it to be harassment on this comes back. Teoh. What I was saying earlier that it could be a one off comment is sufficient to be Harris Hman if it is truly unacceptable. And then we have the case of Munchkins Restaurant Limited in another, versus Commas in On and Others 2000 and nine. On these here we had a group of employees bringing a claim of harassment against the manager. On These were a group of ladies who were working as waitresses on over a period of time. They they put up with a number of sexual comments made by their manager. Now they didn't complain at first, but eventually it got to the stage where they said enough was enough on what the employer tried to argue was that by no complaining for so long, they had, in effect, accepted the behavior. But this was not allowed as an argument. If the behavior's unacceptable, it's unacceptable. And of course, we could have a situation where forever reasons the employee doesn't bring a claim of harassment for some time. I mean, in this situation, what the ladies were saying Waas He was a manager, and they were concerned that if they complained, they would lose their jobs and that could be a very riel fear for employees. So what can you do? Well, the first thing is to make sure that you've got a harassment policy. Now, of course, a policy and itself doesn't mean that harassment will stop in an organisational, that it will never happen. But what it does do is make clear to employees what your stances on the matter. Andi, if you do have a situation where an employee is accused of harassment, if you haven't got a policy on that, employees can say, Well, you've never said it's unacceptable or you've never said what is and isn't acceptable is going to be much more difficult for you to pursue with a disciplinary case Another thing that harassment policy does is it tells the employees what to do. And it could be that the employee is junior to the person that is is coming out the Harris Hman. It could be the employees, quite nervous, is lacking in confidence. Andi. It doesn't feel able to go to somebody and say, Look, this is happening on what should I do? Whereas if they've got a policy to refer to, at least they they can see what what steps they should follow. So what should it include? Well, it should include examples of Harris Hman, but it should also make clear that these are just examples, and it's no UN exhaustive list. But what you should include is examples of things that you're saying are unacceptable in the organization. On this could be personal comments about somebody's appearance. It could say any touching of a sexual nature is just completely wrong and should never happen in the organization. Whatever it is that that you want to say is unacceptable and it would be useful there to also be saying that it could be one event. It could be a series of events on also saying that the perception of the person who's on the receiving end will be very important in deciding whether something is harassment or no. And then you should say what the individual who is the complainant. So the person that's alleging that harassment is, um, taking place what that person should do, and here there should be some options. So saying you should report the matter to your line manager in a lot of situations that will be inappropriate. First step. But what if the line manager is the harasser? Then, of course, that is no going to be appropriate. So this should be options for the individual on those options could be going toe another manager going to the HR department if you've got one. Or it could be that the you say that the individual couldn't go and talk to some manager at the same gender is them. So let's take an example off a relatively junior female employee who's being harassed by their male line manager. They might not want to go and talk to a man about that. They might be embarrassed to do say it, embarrassed to say what's happened. So saying You've got the opportunity to go and talk to somebody of the same gender is a good idea. And then you need to say what what you will do. So you commit that you will always investigate what has happened on that. You will report back to the complaint Mint complainant on the outcome off your investigation on also that you will not accept harassment in the organization and bearing in mind that this policy is no only guiding the individual who might make a claim but is also guiding the individual that that might have carried out with Harass Moon make it very clear that you will take disciplinary action. And it might be that what's happened is gross misconduct on. Therefore, it might be summary dismissal, dismissal without notice. But how should you manage the allegation? So what should you be saying? Looking at this in a little bit more detail about what you'll do if there is an allegation? Well, the first thing is you've got to investigate, and that is really important. And it's important both for the complainant on for the person who is the alleged harasser, because we've got to start with the basic principle of innocent till proven guilty on. Not that you're not believing the complainant, but you've got find out the facts of what has happened. So it's fair to both parties that there's an investigation on when somebody comes to you and says, There has been that that somebody is harassing them, but you need to make it clear to them that you will investigate on that. This will mean that you will have to talk to the alleged harasser. You're going to have to put the allegations to the individual on. You're going to have to ask the individual for their explanation of what has been happening. And that's really important in managing expectations about confidentiality. That, of course, you are going to give some assurance confidentiality and that you're only going to talk to the people that you need to talk to. The complainant needs to realize that the real talk to the alleged Theresa and you will talk to others that might have witnessed what's happened. Andi, you need to work with the complainants, say that that complainant both understands and is comfortable with who you're going to talk to and what you're going to tell them. Typically, if somebody does complain it's fairly clear who's complained. But it could be that there is a complaint about unacceptable banter going on in the office and on it. It could be any of a number of people that brought that to your attention. And if so, you should do all you can to preserve the anonymity of who's actually made the complaint. So it's going to be an investigation. It's most likely that that's going to involve taking witness statements. It's might involve looking at CCTV if it's not just allegations of comments. But it's also of touching, for example, whatever it is that you can do to find out what's really been going on. And you also got to think about how you're going to deal with the alleged Terraza. Now, of course, it could be a one off. It could be a series of events, and it might take you a little bit of time to carry out the investigation, particularly if there's a number of people that you want to talk to. And if the alleged harasser is going to be carrying on doing whatever they they are doing whilst all this is happening, that's not acceptable, so it might be that you've got to intervene at this stage and go and talk to the alleged harasser. It might be that you need to suspend them on full pay pending the investigation. Now that should never be an automatic. Reaction on the employment tribunal has been particularly critical of employees that have rushed to suspend in recent times. But if the allegations are particularly serious on, if you're concerned that the harasser might make life even worse for the alleged complainant, it might be appropriate to suspend. It probably won't be in most cases, but it should be something you just need to think about whether you need to either suspend or move the alleged harasser out of the situation until you've got full picture of what's been happening was that explains the complaint. What you're going to dio on it might be if the investigation is going to take a little bit of time to be a good idea, just to say right, we'll catch up, We'll catch up in a week's time, Andi, so I can tell you how I got on at this station might not be able to tell you any details of any investigation, but it will be have to tell you that I've talked to four people. I've talked to six people or whatever I've done on what else I'm still going to do. Just check in that you're okay as well. And it might be that it's also appropriate to sign posts the complainant to some sort of of support as well. Now you might want to consider this at a later stage. But if the complainant is particularly upset if you've got an employee assistant program, for example, then it might be appropriate to refer them there to have a chat with somebody. It really depends what's happened. But what you need to do is to try and keep the. The whole process is tight as possible, not to rush it, but also not to let it drag along. And it's also worth is at this moment just reminding ourselves of the acres code of practice, disciplinary and grievance procedures. Because in that procedure there is a grievance procedure that set that is, settle on the three basic steps the complainant rights to the employer sitting out the issues. The employer arranges a meeting to discuss the issues with the individual. Eventually tells the complainant what's going to be done on the complaining can appeal again. See outcome? No, I had to raise this for two reasons. First of all, if the employee has raised a formal grievance, then you need toe. Be mindful off the A cast proto practice and make sure that you follow these three steps. But the other is to say that the employee doesn't have to raise a grievance in a situation of horror. Smooth but is usually a fair amount of upset on the individual. Might very nervous of putting something in writing. Just because they haven't raised a grievance doesn't mean that you address the situation any differently. You still need to take action. Andi. Eventually, when you've completed the whole investigation, you're going to have to decide what you do. Your first question is, is it harassment? If it is, then you need to go back to the complainant. Won't say you're right. This is harassment. It's completely unacceptable on sometimes, just to be told it is harassment and it is unacceptable is a big first step on the individual getting over what what has happened. Just knowing that somebody else has agreed that what's gone on is totally unacceptable. The other thing Teoh to think about is what you're going to do with the alleged harasser on it, maybe disciplinary action. It may be that you conclude disciplinary action isn't appropriate, but you still got to talk to their harasser and make sure that this treatment is not going to continue on. The other thing just to think about is if the complainant is wrong when it's not harassment, is there any action you need to take their? Now? If it's just a situation where the complainant has seen something as harassment and maybe you conclude that they've over reacted and it's no, then just explaining that it may be a sufficient. But if you're concluding that the complainant has done something malicious to try and get somebody in trouble and has falsified information, then it might be that taking disciplinary action against the complainant is appropriate. And then finally, how do you stop harassment happening in the organization? Well, the first thing to say is that is probably no possible Teoh ever say you're going to be 100% certain that there is no harassment in the organization because people do things, and you can't stop people doing the unpredictable. But you can think about the culture of the organization ISO culture, where maybe senior management are doing things that the Sena's harassment. Oh, but it is just Bill. He's like that. No. Is there a need to look at the way that keep people in the organization behave or what has become culturally acceptable in the organization On Challenger, I'm ensure that you are making a robust response to anything that seems to be harassment and saying, No, that's not acceptable. We're not going to allow it on. Also, think about training, training for line managers so they understand what harassment is. Maybe going through some of the key points from from this session with your line manages and also in your induction, making it clear to new employees what is and isn't acceptable in your organization. Andi. Setting out and clear parameters is a good way of trying to reduce the possibility of any Harris Hman happening in your organization.