One in two women have been sexually harassed at work according to a survey conducted earlier this year by the Trades Union Congress. It is timely, therefore, that last month saw the launch of a specialist legal advice line for women in England and Wales experiencing sexual harassment at work. The advice line, run by the charity Rights of Women, provides women with advice on identifying sexual harassment, how to bring complaints against employers, the employment tribunal procedure, settlement agreements and nondisclosure agreements. The advice line is the first of its kind in the UK and supporters hope that it will empower women to exercise their legal rights in the workplace. The increased awareness generally of employees' rights in relation to workplace harassment means that responsible employers should be proactive (rather than reactive) in ensuring that their policies and procedures on this topic are in order.
The launch of the advice line follows the publication earlier this year of a report by the Women and Equalities Committee of the UK parliament on the use of nondisclosure agreements in discrimination cases. The report set out the UK government's view that confidentiality clauses and nondisclosure agreements should not be used to 'gag' and intimidate victims of workplace harassment and/or discrimination. The government intends to legislate on this topic in due course. Other initiatives and proposals include the introduction of a statutory code of practice on sexual harassment and harassment at work. It is clear that sexual harassment is a subject matter which continues to remain a key focus of the government, press and public.
Employers have a general duty of care toward their employees and should treat all allegations of sexual harassment seriously and with sensitivity. Employers who are unsure how to deal with such allegations should seek advice at the earliest opportunity. It is worth remembering that employers are responsible for acts of sexual harassment in the workplace, at work related events and at places where individuals are carrying out work-related functions.
Employers are usually liable for the acts of their employees done in the course of their employment and may also be liable for acts of third parties such as customers or suppliers. If an employee is subject to sexual harassment from a colleague, an employer may avoid liability for the harassment if it can show that it took all reasonable steps to prevent the harassment. The test in relation to acts of harassment by third parties is similar – an employer must show that they took reasonably practicable steps to prevent the behaviour of the third party. What does this mean in practice? Case law has shown that simply referring to training and policies is not a sufficient defence. In addition to having anti-harassment policies and holding regular training sessions, employers must take active steps to prevent and address sexual harassment in the workplace. This includes responding quickly and appropriately when a complaint or grievance is made, tackling any issues with workplace culture and offering support to affected employees (both the accuser and accused). Depending on the nature of the allegations, an employer might choose to temporarily transfer an employee or to suspend them. Should the harassment become a criminal matter, an employer must still proceed with its investigation and follow and conclude its disciplinary/grievance procedures.
Sexual harassment is likely to remain a key issue for employers to confront and, as mentioned above, having robust policies in place is merely the starting point. Given the UK government's intention to legislate and introduce a statutory code of practice, human resources professionals should be encouraged to watch out for further developments in this area.
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