Just over a month ago, it was revealed that 56 MPs were being investigated for approximately 70 incidents of sexual misconduct – including an allegation of bribes for sexual favours.
While this could lead to comparisons with the recent political TV drama, Anatomy of a Scandal, it certainly means that a refresh of #MeToo is needed.
And as we all return to work – and the socialising that comes along with this – what steps should HR take now in preparation for the Government’s (somewhat ironic) proposed employer duty to prevent harassment?
How important is this?
The PR damage from allegations of sexual harassment is significant.
Consumers factor in reputation into buying decisions – studies show that approximately 65% of consumers boycott brands due to their stance on a social issues and 77% said they buy from brands which shared their values.
Given the huge value of a brand’s reputation (a study by the World Economic Forum pitched this value at on average more than 25% of market value), it is perhaps not surprising that allegations of sexual harassment hit the bottom line.
Research undertaken by the Copenhagen business school found that the share price of a listed company takes a hit of 1.5% following a public allegation of sexual harassment (which equated to an average financial hit of $450 million).
This is on top of the fact that allegations of sexual harassment often cause low morale, impacting on productivity and employee turnover.
And, of course, the liability for such claims can be financially costly for employers.
What is the current legal position?
As a brief recap:
- sexual harassment occurs where a person engages in unwanted conduct of a sexual nature which has the purpose or effect of violating another’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person
- employers are liable for acts of sexual harassment carried out by employees in the course of their employment (which has a potentially very wide remit)
- one act can amount to harassment
- there is a defence to such claims where an employer can show it took all reasonable steps to prevent sexual harassment
So, what looks likely to change?
Following the 2018 Women and Equalities Select Committee report on sexual harassment in the workplace, and the Government’s subsequent consultation, the Government has proposed a new proactive employer duty to take all reasonable steps to prevent sexual harassment.
The new duty is also to include protection for employees from third party harassment and may well extend the time limit for bringing claims of harassment in the Employment Tribunal.
It is not clear precisely what steps the new duty will require employers to take or whether the new duty will provide the basis for claims to be brought regarding an alleged failure to take such steps without any act of sexual harassment having occurred.
The new law is to be introduced, “when parliamentary time allows”, however, in view of the allegations in Westminster it may move up the priority list, as a buffer to scrutiny of the position in Westminster.
What should HR be doing now?
There are sensible steps that we can take now to manage the current and future risks and maximise the benefits of an improved culture-such as:
- Find out how big a problem you have in your business: audit the grievances and Tribunal claims (if any) that relate to sex harassment. Consider talking to line managers about informal complaints, review your exit interviews, and past employee surveys. Consider canvassing your workforce for their views, such as through carefully worded surveys. Zero in on any areas of the business with sudden high sickness absence, high turnover or other changes in behaviour.
- Consider conducting a risk assessment based on the results of any audit: this can include the sector your business is in, the exposure to third parties and disparity in seniority of those working together. You will want to ensure that this document is covered by legal privilege until it is in final form and that it helps (rather than hinders) the business in defending claims as well as providing the backbone of a strategy for achieving genuine change.
- Your policies may need revision and should be subject to regular review: the ECHR Technical Guide on Harassment suggests that employers have a separate sexual harassment policy to other forms of harassment and recommends publishing a supporting strategy document setting out the steps to be taken to tackle sexual harassment, factoring in views from employee forums and representative bodies. Any such strategy document will need to be drafted carefully and certainly should not be contractual in nature. Such policies should be well-publicised and available without having to request copies. It will also be important to ensure that the content of your policies does not deter victims through the language around malicious complaints.
- Ensure the method of reporting incidents of sexual harassment has as few barriers as possible: consider an externally operated hotline where reports can be made anonymously, and perhaps more than one way to report incidences of harassment, such as an app.
- Consider how you train your workforce on this topic: is your current training effective and does it go to the heart of improving your culture, educating on the impacts of sex discrimination and sexual harassment?
- Consider your overarching strategy for bringing about change: the most effective strategies permeate a variety of areas of day-to-day operations, from initiatives to raise representation of women (such as steps to tackle gender bias in recruitment and promotion processes), to taking steps to create a more open and collegiate culture, through effective educational training, taking action to show zero tolerance to sexual harassment and instead reward those who contribute to change.
