Dealing with harassment at work
Many of us probably think workplace harassment is a thing of the past, but it is both surprising and disappointing that cases are still hitting the headlines.
Last year, the Trades Union Congress (TUC) found that in a survey of 1,500 women, 52% said that they had been harassed at work.
Similarly, just last month, one of the world’s largest transportation companies, Uber, hit the headlines after a former female engineer went public with her story of harassment and discrimination by management and repeated rebuffs from their human resources department. While Uber has been quick to say it is investigating her complaints, stories of this nature emphasise that harassment in the workplace is alive and well, and provide a cautionary tale for other employers, big and small.
Employers need to have robust procedures in place to ensure they are ready to deal with similar situations if they arise.
What is harassment?
Harassment generally takes the form of unwanted conduct that affects the dignity of people – both women and men – at work. The Equality Act 2010 defines harassment as 'unwanted conduct related to a relevant protected characteristic or of a sexual nature that has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual'.
The relevant protected characteristics are race, sex, sexual orientation, gender reassignment, religion or belief, age and disability. A person is also protected against harassment based on someone else’s protected characteristic, for example if they are harassed because of their husband’s race or their child’s disability.
Harassment may be deliberate and conscious, but it can also be unintentional. Case law has found that harassment can include being shouted at, being called names, being sent offensive messages, comments about appearance, downloading pornography and being overlooked for promotion or being propositioned.
In Driskel v Peninsula Business Services, the Employment Appeal Tribunal upheld a claim by a female manager who alleged that she had been harassed by her head of department, who had told her (among other things) that if she wanted to be promoted, she should wear a short skirt and a see-through blouse showing plenty of cleavage.
A frequent defence made of harassment claims is that comments were ‘only banter’, but time and again employment tribunals have rejected this argument. Similarly, there is a myth that a single incident cannot amount to harassment: this is not correct. Case law has established that one incident can be sufficiently serious to amount to harassment.
In Insitu Cleaning Co and another v Heads, the Employment Appeal Tribunal upheld a decision that a woman had been unlawfully harassed when her manager said to her ‘hiya, big tits’. This one incident was sufficiently serious to amount to harassment.
Employers can be liable for acts of harassment carried out by their employees during the course of their employment. Generally, the courts take a fairly wide view of what constitutes ‘the course of employment’ – case law (Jones v Tower Boot Co) indicates that you assess it by giving it its ordinary meaning. Therefore, employers might find themselves liable for harassment that occurs outside the workplace and outside working hours, for example, at work-related social functions. There is also an argument that employers may be liable if they fail to protect employees from harassment by third parties, for example patients.
Employers have a defence and will not be liable for harassment of their employees if they can show they took all reasonable steps to prevent it. Having well-drafted policies, making sure employees are aware of them and training them so they understand their obligations and what behaviour is unacceptable will assist with establishing this defence.
The Protection from Harassment Act 1997 also imposes liability on an employer for a course of conduct by an employee in the course of their employment that amounts to harassment. Harassment for these purposes need not be related to a protected characteristic, and includes alarming the person or causing them distress.
Policies and procedures
As part of the employment relationship, employers have implied duties towards their employees. These include a duty to provide a safe and suitable working environment, a duty not to destroy mutual trust and a duty to provide redress of grievances. Therefore, all employers – big and small – should ensure they have policies and procedures to deal with harassment.
While some (generally smaller) employers require employees to use their grievance procedure if they wish to make a harassment complaint, having a separate policy with a more detailed procedure for harassment investigations (in recognition of the sensitivity and seriousness of complaints) is advisable.
An anti-harassment and bullying policy should set out what constitutes harassment and bullying, the steps an employee should take if they consider they are being harassed, and how such matters will be dealt with, including disciplinary action against anyone found guilty of harassment.
With the growth of online bullying and harassment, it may also be advisable to have a social media policy that distinguishes personal use from business use and details what 'responsible use' looks like.
The Equality and Human Rights Commission Code recommends that employers have an equal opportunities policy. While compliance is not a legal obligation, it is advisable as breaches can be taken into account by an employment tribunal in deciding whether harassment has taken place.
Ways in which complaints might be raised
There are several ways that complaints may be raised and much will depend on the policies and procedures.
In the first instance, employees should be encouraged to seek to resolve the problem informally with the person responsible. Where they feel that they cannot, or they attempt to do so but cannot resolve matters, it will be necessary to make a formal complaint.
Some policies may dictate that complaints need to be raised in writing; others may permit complaints to be raised by speaking to a particular person. Much will depend on the size of the organisation.
If, after the employer’s policies and procedures have been exhausted, the employee is still not satisfied with the outcome and wishes to pursue their complaint further, they can bring a claim against their employer in the employment tribunal.
To start off this process, they will need to go through a process of early conciliation with the Advisory, Conciliation and Arbitration Service (ACAS). Once that process has been completed, they can file a claim at the employment tribunal.
If successful, there is no upper limit on the amount of compensation that can be awarded. In addition to any financial loss, a successful claimant will be awarded compensation for injury to feelings, which can range from £600 for a one-off instance of harassment, up to £36,000 for a lengthy campaign. Claims are brought in the civil courts where damages may be awarded for (among other things) any anxiety caused and any financial loss.
How to deal with and investigate a complaint: communicating with both parties
When a complaint is received, it is important that an employer follows the steps set out in their policies. Failure to do so may be viewed negatively by an employment tribunal. The usual steps are as follows (although smaller employers may have less formal procedures):
The employer should investigate the complaint promptly, ensuring confidentiality of the complaint. The investigation should be carried out by a person with appropriate experience and preferably no prior involvement in the matter. The investigation should be impartial and objective, while maintaining a degree of sensitivity.
The investigator should meet with the complainant, usually within a week of the complaint being raised, who may be accompanied by a colleague or trade union representative. It may be appropriate, depending on the allegations and other circumstances, to suspend the alleged harasser on full pay or to make other temporary changes to working arrangements until the outcome.
The investigator should meet with the alleged harasser, who may be accompanied by a colleague or trade union representative. The alleged harasser should be told the details of the allegations so they can respond.
It may be necessary to interview witnesses, in which case it must be emphasised to them that the allegations and the detail are confidential and should remain so.
The investigator should prepare a report and submit it to an appropriate senior manager for consideration. The senior manager should then meet with the complainant (who may be accompanied), usually within a week of receiving the report, in order to discuss the outcome of the investigation and any action that is to be taken. Both the complainant and the alleged harasser should be given a copy of the report and its findings.
Where action is to be taken, it should be carried out swiftly. If there has been a finding of harassment, it should be dealt with under the disciplinary procedure as misconduct or gross misconduct as appropriate.
If the complaint is not upheld, no action should be taken against the complainant unless the complaint was not made in good faith, in which case the matter should be dealt with under the disciplinary procedure.
Regardless of the outcome of the investigation, the employer will need to give thought to how to manage the situation. Both parties may need counselling or a mediation process. Working arrangements of the parties – including locations, reporting lines and duties – may need to be altered.
If the complaint is not upheld, the complainant should be given the right to appeal and an appeal meeting should usually be held within one week.
The personnel files of the complainant and the alleged harasser should be updated with details of the investigation, outcome and any resulting action. The employer needs to keep a lookout for any retaliation or victimisation that results from the complaint and subsequent investigation. Three things to take from this article:
- Know what harassment is.
- Ensure you have proper policies and procedures.
- Ensure you follow these policies.
This article was originally published in Management in Practice magazine.
The articles published on this website, current at the date of publication, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your own circumstances should always be sought separately before taking any action.