A new statutory code of practice to protect workers from sexual harassment is due to be introduced following a 2018 report. Coodes Solicitors Employment Lawyer Philip Sayers shares his thoughts on the subject.
A report was released in July 2018 by the Women and Equalities Select Committee, which called on government, regulators and employers to take a tougher stance on sexual harassment in the workplace. The Government has since announced 12 action points in response to this report. The main highlight of the response was that the Equality and Human Rights Commission will be asked to develop a statutory code of practice regarding sexual harassment.
The Government have, however, come under criticism for taking too long to respond to the original report and that it’s response is not doing enough to tackle the problem.
Although the code is still being devised, it is likely that one area of focus could be that an employer may possibly avoid liability if they can demonstrate they have abided by the code and taken all reasonable steps to prevent harassment from happening. If an employee continues to harass a colleague, then the individual harasser will be liable. This is the current legal position, but the code may outline steps that employer should take to use this defence.
A recent survey showed that almost four in ten women have been sexually harassed at work in the past 12 months, while 56% of those surveyed suggested their organisation did not have a sexual harassment policy, or that they weren’t aware of one.
Sexual harassment is unwanted conduct of a sexual nature that can happen in any number of ways, including verbal or written comments, unwanted physical contact, displaying explicit images or sexual assault. It can happen to anyone and can be caused by anyone.
An employer should make it clear to employees what behaviour is acceptable and what is not. Something can still be considered harassment, even if the alleged harasser did not mean for it to be.
Anyone who has experienced sexual harassment, or has witnessed it happening, can make a complaint. An organisation’s workplace policy should outline who to make a complaint to, or failing that, an employee can make a complaint to their appropriate manager, HR personnel or union representative.
All employees are protected from sexual harassment in the workplace under both employment law and criminal law, depending on the situation.
Employers should handle all complaints sensitively and fairly, including when dealing with any accused workers. Complaints should be dealt with in line with existing policies and procedures. Although it is expected for complaints to be solved within the workplace in the first instance, if this isn’t possible, there may be a need to take it forward to an employment tribunal. Acas can offer further support and advice.
Physical threats and sexual assault are criminal matters and should always be reported to the police. If a complaint has been reported to the authorities, it must be still investigated in the workplace. An employer may progress their organisation’s disciplinary procedures without waiting for the outcome of the criminal proceedings, as long as this can be achieved impartially.