‘Me too’ in the workplace

I recently had the opportunity to attend the prestigious WS Society Employment Law Conference in Edinburgh, a superb event with some of the finest legal minds in the country presenting sessions on the latest employment law issues and developments facing industry today.

Of particular interest was the session on “The Me too” movement and sexual harassment claims’. In this article, I share some of the key findings with you and emphasise the need for a specific sexual harassment policy as well as training for managers on how to handle claims by employees.

Following the avalanche of disclosures in the US about harassment in the film industry which lead to the #Metoo movement. Then research conducted by the BBC in November 2017, which revealed quite staggeringly that 40% of women and 18% of men in the UK had experienced some form of unwanted sexual behaviour in the workplace.

The subject is now in the news almost daily, affecting every profession. So, has there been a flood of harassment claims in Scotland? The statistics issued by the Employment Tribunal Service do not differentiate between ordinary discrimination and sexual harassment claims and on the face of it, the number of sexual harassment claims has been steadily declining since 2013/14. However, what we are witnessing is a major change in consciousness and there is no doubt that media has had an enormous impact on this. HR teams know just how damaging even one complaint might be – both for the organisation and for the individuals who are accused.

The Women and Equalities Committee report
A call to action following the high profile allegations of sexual harassment in the entertainment industry, the #MeToo campaign and the report issued in report issued in March by the Equality and Human Rights Commission (EHRC).

The Women and Equalities Committee has published a report on sexual harassment in the workplace recommending a five point plan for the government.

The Committee’s report is highly critical of the current lack of protection for workers. It urges some radical reform and wants to ensure that tackling and preventing sexual harassment at work becomes a priority for the government, employers and regulators. The report is clearly aimed at putting sexual harassment at the top of the agenda and it will be interesting to see the government’s response to the recommendations. In the meantime, employers are advised as a minimum to:

• Have a zero tolerance anti-harassment and bullying policy, which is effectively communicated to all staff and contains a clear code of conduct and transparent reporting procedures; and

• Deal with any sexual harassment complaints effectively and consistently.

As you would expect, the general recommendation is that employers have in place comprehensive zero tolerance policies and codes of contact that are clearly communicated to employees on an ongoing basis, for example through anti-harassment training for staff.

Policies for managing relationships at work
Workplace relationships are a fact of life and inevitably, an employer may be reluctant to interfere when that relationship is in difficulty. It may be hard to distinguish between complaints that relate to work or have an impact on it, and those which do not.

Ultimately though, an allegation of sexual harassment which arises in the context of a workplace relationship or subsequent breakdown still needs to be handled carefully.

In the US, it is apparently becoming common to see policies which simply ban relationships at work. In the UK, employers are reluctant to go as far as that, but some are introducing ‘love contracts. These contracts impose an obligation on employees to inform an HR contact of any relationship with another employee. They are designed to monitor and avoid conflicts of interests and guard against abuse of power.

Effective training is about much more than having a policy, it requires regular updates, reminders and effective responses to allegations.

Inevitably, face to face training is the best and most effective method – Borders Employment Law regularly carry out in house training on managing sexual harassment in the workplace for a wide range of clients. This can be tailored to the individual business, industry and requirements but what is always illuminating is the use of scenarios to demonstrate the way that ordinary ‘banter’ can result in claims.

Reporting procedures
The EHRC believes that general grievance procedures are inadequate when it comes to claims of sexual harassment. Instead, it calls for employers to be proactive in implementing effective reporting mechanisms which encourage employees to make a claim without repercussions.

Suitable reporting tools can include:

• External whistleblowing hotlines, whereby complaints can be made anonymously.
• Telephone lines run by a third party to give guidance to those who wish to complain.
• Anonymous, online reporting facilities.

However, the reporting process can be challenging. If a complainer makes an anonymous report, it usually means that the employer cannot act upon the complaint – it is impossible to do so without the complainer’s identity being revealed. Anonymous reporting lines are more usefully connected to employee assistance programmes which support individuals in how to make a formal complaint.

This is also a difficult subject in the context of an initial report. It is extremely important that the need to maintain confidentiality is explained to all involved at an early stage – and embedding this is policy is helpful.

Policies are most often consulted when the report is first made, as everyone is working out what to do next. By the time witnesses are called to interviews, it may be too late to reinforce the importance of confidentiality.
At this point, confidentiality undertakings are not about gagging the complainer – they are about ensuring that the process is controlled, evidence protected, and gossip contained.

Handling complaints
It is critical that employers respond promptly and effectively to any complaints of sexual harassment. All allegations should be dealt with fairly and sensitively, ensuring that the feelings of both the complainer and the alleged harasser are taken into account.

It is possible (with a specific policy) to create a mechanism dealing with less serious allegations that sit outside the formal grievance procedure.

Some organisations are using policy to ‘grade’ conduct and identify ‘aggravating factors’ which might make conduct more serious. This categorisation also ensures that knee jerk reactions area avoided, if you take this approach and it transpires that there is a pattern of low-level complaints against an individual, then the action can be escalated accordingly.

There are some practical thoughts on the steps to take at the outset of an investigation as follows:

Specialist investigator
It makes a lot of sense to have someone experienced in dealing with an investigation involving harassment. An employer should consider someone who is specially trained, such as employing a specialist lawyer or HR consultant, as an absolute minimum, it should be given to someone in the organisation who has experience of conducting workplace investigations.

Recent case law has created concern about the impact of suspension and it is not recommended in every case or on an ‘automatic basis’.

The impact on the reputation of an individual who is accused of harassment is likely to be significant, it is therefore important to consider the initial evidence to consider the initial evidence carefully first before moving to suspend.

Preserving confidentiality
As already identified, this can be difficult – particularly in workplaces with smaller numbers of employees or open plan offices. Marching people into rooms for interview in short succession is obviously unwise!

Analysing evidence
Evidence should be corroborated wherever possible but, eye witness evidence will be relatively unusual in a harassment case. Corroboration may be obtained if the witness reports seeing the complainer upset or was confided in following an incident.

Increasingly, evidence may be available form text messages, social media and CCTV evidence – these should be secured but subject the usual privacy safeguards.

Dealing with historic allegations
Historic allegations will be harder to investigate fairly because as memories fade over time it may be more difficult to find corroborative evidence.

But a lapse in time does not justify a decision not to respond to a complaint, bearing in mind that there may be a variety of reasons why the employee was reluctant to raise it. It is unwise to rely on a lapse of time as a reason for not investigating a complaint. Treating allegations of historic sexual harassment seriously will also help to communicate an employer’s zero tolerance policy on inappropriate behaviour.

As you will see the challenges for managing sexual harassment claims are considerable, this is an extremely complex area of the law with potentially devastating consequences for those involved.

We would highly recommend that you develop separate policies for dealing with sexual harassment, or even just harassment. Even though your approach to policy might be cultural or sector specific, we hope that this article has demonstrated the merits of a well-structured and clearly worded policy that provides plenty of flexible direction and guidance.

As an employer, you will only get one chance to respond well to a sexual harassment allegation. Borders Employment Law can help you to develop separate policies, provide you with expert representation at any stage of a report, complaint or claim. Remember we can also deliver in house training to your team on sexual harassment which can go a long way to preventing some of these unwanted behaviours in the first place.

Its been just a year since the Weinstein scandal broke and the ‘Me too movement’ started and in that short time there has been a sea change in the way that sexual harassment is handled and viewed around the world.