Sexual harassment at work is a serious matter and can lead to criminal charges and prison if convicted. stopsexualmisconduct.co.uk believes “prevention is better than cure’. Allegations of sexual misconduct should not be viewed as a joke, but they often make people’s lives a misery and seriously affect how they perform their jobs.
In line with the new Worker Protection (Amendment of Equality Act 2010) Act 2023, employers are now liable for the actions of their employees which may cause offence to another employee. Employers may also be liable for acts such as sexual harassment committed away from the workplace, especially where the harassment occurs on social occasions outside work.
Managers therefore have a responsibility to prevent sexual harassment at work and, if this is not possible, to respond effectively when a complaint is made. Remember, if a complaint does go to a tribunal, how you handled the complaint will come under scrutiny.
These guidelines are aimed at directors, managers and supervisors and should help you to minimise the number of complaints of sexual harassment at work nonetheless. And if they do occur, they offer you a clear and speedy way to potentially resolve them.
Your role and responsibilities as a director, manager, or supervisor line.
sexualmisconduct.co.uk has outlined what would be appropriate as your role of responsibility which is important in delivering equality of opportunity in the workplace.
Below we will take you through some typical situations, raising areas where problems could arise and giving guidance on how to handle the situation in the best interests of your staff and your organisation.
Your role is particularly important in dealing with sexual harassment at work. You are probably going to be the person who is notified of any complaint, and you will have to deal with it effectively.
It’s your responsibility to ensure that sexual harassment at work does not happen in your organisation, and you need to be alert to the kind of behaviour that can be regarded as harassment. In addition, if you fail to deal with harassment effectively it can affect your workforce’s ability to work together in a productive way.
- You can help to minimise the chances of harassment occurring by setting a good example through your own behaviour – by treating all staff and others with respect.
- Seeing or hearing unacceptable behaviour from colleagues and others but doing nothing about it can be seen as condoning harassment.
- You should not tolerate an environment where sexual ‘banter’ is common just because no one has complained. A lack of complaints does not mean there is not a problem in your area. It may mean that people are too embarrassed or fearful to come forward.
- You need to explain your organisation’s “zero-tolerance” approach to sexual harassment at work, both to your staff and others where necessary. Each member of staff should have a copy of your policy and procedures. New staff need to be given one when they join your organisation. You also need to ensure that people understand that sexual harassment at work is a disciplinary matter and to have a disciplinary policy and procedure in place.
- Let your staff know. Make sure that the staff you manage understand what sexual harassment is, and why it is unacceptable as sexual harassment at work is a very serious matter and will not go unchallenged. For this reason, many organisations treat a false accusation of sexual harassment at work, made from malice, as gross misconduct.
- People are often reluctant to make a complaint as they don’t want to be seen as a troublemaker. But knowing they can get the harassment stopped with a minimum of fuss should enable people to feel they can raise the issue.
- It won’t go away. Avoid the temptation to hope the situation will ‘blow over’ or sort itself out. Although it can be difficult to tackle individuals about their behaviour or actions, it is better to act early rather than allow it to worsen by doing nothing, or for the situation to be repeated with others.
Take charge. As a person who is in a senior position, it would be unfair to expect your staff to deal with sexual harassment at work by themselves. If they cannot deal with the situation, you should also be willing to step in and help.
Get help. If you are not sure how to handle a situation or a complaint, you may wish to contact us for further get advice.
If you don’t have a policy on sexual harassment, your organisation should produce one. Further information on this can be found on our Consulting and Investigation page.
If you do have a policy, as a as person of responsibility you must make sure people know about it and understand how to make a complaint.
Receiving a complaint of sexual harassment at work
Dealing with sexual harassment at work within your team can be difficult. However, handling it promptly and professionally will let your staff know that complaints will be taken seriously and dealt with impartially.
- Refer to your organisation’s sexual harassment policy and speak to HR about any help or support you may need. If not, you make wish to contact us.
- Get help. If you’re not sure if you should handle a complaint or situation formally or informally, you may wish to contact us to get confidential advice.
- Detailed record. It would be advisable to keep a detailed record of any conservations concerning all parties involved (this should always be done within an hour of the conversation taking place). Simply put, if the situation is not resolved and should matters progress then previous notes made would assist any further investigation. It protects all parties concerned!
- Take-action. You need to deal with any complaints quickly and in confidence. Neither the identity of the person making the allegation, nor the alleged harasser should be revealed to the wider workforce. It’s a good idea to ensure that any paperwork regarding a complaint is locked away.
- Informal or formal? Where possible, it’s usually better to handle complaints of sexual harassment at work informally, as it can resolve problems with a minimum of anxiety for those involved. Formal procedures are usually implemented when informal attempts have failed, or where the situation is so serious that it merits formal proceedings.
- Do not dismiss complaints. Before you thoroughly investigate them. It’s unacceptable for someone to claim that “it’s just a personality clash”, or to assume that the person complaining is “over-sensitive”, or there is too much at stake because “someone’s job may be on the line”.
- Confidentiality. It may not be practicable if a complaint of sexual harassment at work is raised in a small team. In such cases, the two people concerned should be advised that there should be no communication between them, directly or indirectly, in relation to the complaint.
- Responsive and supportive. You will need to be fair to anyone who makes a complaint while at the same time treating the alleged harasser fairly.
- Do not take sides. It is important that other members of the workforce do not take sides. It needs to be made clear that other staff must not victimise or prejudge either the complainant or the alleged harasser and that this is a potential misconduct issue.
- If there is a problem over the complainant and alleged harasser continuing to work together, you may have to suspend both on full pay for the duration of the investigation. You should never move the person to a different area until the investigation is fully exhausted, never complain to them or pressure them to move, unless they have specifically asked for this.
How to handle a complaint informally
When dealing with a complaint informally it could resolve the situation quickly and have the desired effect stopping the unwanted behaviour that caused the distress, as once someone realises that people find their behaviour objectionable or unprofessional, they may probably stop.
You need to be objective about whether the matter is one that could “reasonably be expected” to be dealt with informally. Do not be tempted to go down this route when it is not appropriate. The easier option is not necessarily the best option.
Your organisation’s policies and procedures should cover this, and act on it. Below are some basic steps to take if your organisation does not have them, at this point, you should consider contacting us.
- Stopping harassment informally. Once you have established that there is a problem, the harasser should be spoken to (in private) and:
- asked to stop the unwanted behaviour
- have the impact of their behaviour explained.
- be advised that their behaviour is contrary to the organisation’s harassment policy and procedures.
- have confirmed the required standard of behaviour expected of all employees.
- be advised of the consequences of continuing, and
- told that this discussion is informal and confidential (but you should take a written note of what was discussed, as mentioned above), and that the situation will be closely monitored.
- Offer to help. If the victim is reluctant to speak to the alleged harasser on their own, you might want to accompany them, or speak to the alleged harasser on their behalf. Alternatively, a person in HR, a trade union representative or someone in your organisation who has been trained to handle such complaints could speak to the alleged harasser on the victim’s behalf.
- Be proactive: It is recommended a letter should be sent to both parties, stating what’s happened, although in an informal manner, as experience dictates, this could cover your organisation should the matter escalate to civil or even criminal proceedings.
How to handle a complaint formally
Usually, the employee experiencing sexual harassment at work must lodge a formal complaint. An investigation is then initiated to gather all the relevant facts (and evidence) by interviewing the complainant, the accused, and any other witnesses.
When the complaint is first received consult with your HR department (if there is one in place) and your organisation’s policies and procedures for dealing with sexual harassment at work. Below are basic guidelines to take if your organisation does not have them.
- When you first receive the complaint set out the terms and ensure all parties concerned are informed in writing the complaint has become formal. A reference of the investigation, what is being investigated and by whom, should also be set out in the formal letter.
- Then set out a time frame for the investigation. That way you will know what needs to be done and how to do it and the complainant and the alleged harasser know how long it will take.
- What’s going to happen? The complainant and the alleged harasser should be informed how the investigation will be carried out and who they will be dealing with. They should both be advised that they have the right to be accompanied to any meetings by a colleague or trade union representative.
- Not connected. Directors, Managers and Supervisors carrying out formal investigations should not be connected in any way with the allegation that has been made.
- Prompt action. You should aim to deal with formal complaints as quickly as practicable. Where possible:
- within three to five working days of the complaint being made, obtain written statements from those involved and any witnesses
- within a further three to five working days, conduct separate meetings with the complainant, the alleged harasser, and any witnesses to establish the facts of the case
- it may be necessary to have further meetings to get extra information or clarify points from earlier interviews.
- Make and keep written records of all the meetings. Once you have obtained all the information possible, prepare a written report that outlines the facts of the case and sets out the findings. This should be made available to both parties at the same time.
- Communicate your decision. Once you have decided you need to inform both the complainant and the person against whom the complaint was made of your decision. You should do this in writing.
- Next steps. You will need to decide whether the disciplinary procedure should be invoked, or some other action taken, such as providing training or counselling, or whether no further action should be taken.
- Reintegration into work may be necessary following the outcome of the investigation. It can be difficult for people to resume work as if nothing has happened. You need to provide a framework of support, this could involve counselling services, ensuring that the person returns to an environment that is safe and neutral – i.e., where there are no reprisals. You will need to check on their progress periodically and health and safety management provides the framework to do this.
What to do after an investigation into sexual harassment at work
After the investigation into sexual harassment at work, your organisation’s policies and procedures should be followed or possibly reviewed.
Ideally, you should meet with the individual who made a complaint to ensure that no further sexual harassment at work or victimisation has occurred, either from the harasser, their colleagues or line management. A similar meeting should also be held with the harasser to check that they have not been victimised.
The following are possible outcomes and actions you may consider:
- If a complaint has not been upheld or the evidence is inconclusive, you could offer mediation sessions with both parties or consider offering voluntary transfers.
- If there is sufficient evidence of serious unacceptable conduct – formal disciplinary action should be taken which could include a verbal warning, a written warning, transfer, or dismissal.
- If a complaint has been upheld and the behaviour was unintentional and the actions regretted, you could provide counselling for both parties, awareness training for the perpetrator or consider using your organisation’s disciplinary procedure.
- If a complaint has been upheld, the complainant may not wish to work with the harasser. If it is agreed that further contact between the two would be unacceptable you should try and do this. Ideally, it should be the harasser who is moved. If it is the complainant who is moved, ensure that such a move does not disadvantage them in any way.
- If a complaint has been upheld and the harasser remains in your employment, you should ensure that they are made fully aware of your organisation’s policies on sexual harassment at work and equal opportunities and of the law in this area.
The law and sexual harassment at work
Sexual harassment at work is unlawful under the Sex Discrimination Act. Lesbians and gay men are also protected, under the Employment Equality (Sexual Orientation) Regulations.
An employee who experiences sexual harassment at work can seek compensation by taking a case to an employment tribunal.
Employers can defend a claim if they can show that they took reasonable steps to prevent the employee’s behaviour. Tribunals consider whether an organisation took “reasonably practicable” steps to avoid discrimination when deciding if the employer was at fault. You may wish you had your policies and procedures reviewed by experts.
If you or your organisation are not convinced that you need to deal with sexual harassment at work, then bear the following in mind:
- most employees want to be treated with respect and work in a pleasant atmosphere
- you will not attract and keep the best staff if word gets around that sexual harassment at occurs in your organisation
- it can cost about £4,000 to replace a member of staff
- defending a claim takes time as well as money and does little for an employer’s reputation, and the stress involved in having to mount a detailed defence of your behaviour and actions, which will come under severe scrutiny, should also not be underestimated.
Notes for employers
If you do not have clear procedures for dealing with sexual harassment at work you may face a claim of constructive or unfair dismissal from either the person being harassed or the alleged harasser. This is where we can come in, my proving you with a consultation and offering our expert advice.
A policy that gives examples of unacceptable behaviour, makes clear to employees the kinds of actions that won’t be tolerated. It also spells out what is inappropriate behaviour and should help to stop problems before they start.
If complaints are made, having a policy in place should sort remedy matters quickly and informally and reduce the chances of having to defend an employee’s claim at a tribunal. In addition, people will know they do not have to put up with sexual harassment at work and what they and their employer can do about it.
If your organisation does not have one, you would be advised to contact us as we at stopsexualmisconduct.co.uk can together create a watertight sexual harassment at work policy which will protect all of those concerned or have a general policy on harassment or equal opportunities, review it after you’ve read these guidelines to ensure that it does the job you want.
- Train staff on the policy and the procedures for making and dealing with complaints. Talk about what kinds of behaviours could offend colleagues and customers. Inform employees that have a responsibility to discourage sexual harassment at work by making it clear that they find certain behaviours unacceptable. Run this training periodically to ensure that new members of staff understand the policy and procedures.
- Publicise the policy through posters and put the policy on your company intranet and in your staff handbook. Publicising the policy informs staff of their right to complain and to whom, and that their complaint will be treated fairly and quickly. Regular publicity and discussions enable more people to raise the subject without fear of embarrassment.
- Providing training for several staff to deal with complaints of sexual harassment at work also ensures that you will have someone else in your organisation to talk about a complaint with and seek advice and support from while maintaining confidentiality. It can be difficult and stressful to handle such complaints alone. You do need to be confident that your supervisors and managers act consistently on company policy.
- You should have people of both sexes trained to hear complaints of sexual harassment at work. Given the sensitive and potentially embarrassing nature of such incidents, it is probable that a person making a complaint will wish to speak about it to someone of the same sex as themselves.
- Monitoring. It’s essential to periodically check if your policy is being successfully implemented. The organisation should review what happened with any complaints you received. Were the correct procedures followed? Did the cases highlight any other action your organisation needs to take?
- However, it’s not enough just to have a policy; you have to make sure people know about it and understand how to make a complaint, as tribunals take into account whether an organisation took “reasonably practicable” steps to avoid discrimination when deciding if the employer was at fault.
- Your organisation’s Directors, Managers and Supervisors need to take a “zero- tolerance” to sexual harassment at work. Each member of staff should have a copy of your policy and new staff need to be given one when they join the organisation. They will also need to ensure that people understand that sexual harassment at work is a disciplinary matter and to have a disciplinary policy and procedure.
In Caniffe v East Riding of Yorkshire Council (2000), Ms Caniffe was sexually assaulted by a colleague while at work. Her claim of sex discrimination failed as the tribunal considered that by having disciplinary, grievance and personal harassment policies in place that had been drawn to the attention of all employees, the council had discharged its liability. However, the tribunal had not considered what further steps the council could have taken, and Ms Caniffe successfully appealed against this decision. The employment appeal tribunal ruled that the proper approach tribunals should take when deciding on liability was, firstly, to identify whether any preventative steps had been taken by the employer and, having done so, to consider what further steps the employer could have taken which were reasonably practicable. The implications of this case are that employers cannot simply argue that there was nothing they could do to prevent it. They could argue that they have an anti-harassment policy in place, but again this will not help if the policy is found to be inadequate.
More detailed guidance on sexual harassment at work
We hope this article has been helpful in guidance regarding sexual harassment at work. However, if the information has not answered all of your questions regarding sexual harassment at work then please feel free to contact us.