Why are employers not tackling harassment?

The Weinstein scandal and the #MeToo movement have seen employers take preventative action, but we are a long way from a cure, says Jonathan Maude

Pizza Hut recently lost a case in an employment tribunal where it was found an employee experienced unwanted conduct of a sexual nature, which created an intimidating, hostile and humiliating environment for the claimant. 

The judge awarded £13,000 for injury to feelings. She did not find sufficient evidence of any clear policy or procedure for dealing with sexual harassment and conduct in the workplace, and applied an extra 15 per cent of the award by way of compensation because of failings in the business’s handling of the claimant’s grievance. 

Further compensation was added for loss of earnings and interest. “We found that the investigation was entirely defective. It did not in fact address the points raised by the claimant, nor did it provide any response to her complaints,” said the judgment.

But it is not just the cost of compensation and dealing with proceedings which employers have to contend with when they fail to handle harassment properly – there is also the adverse publicity and reputational damage that goes with losing such claims. And as reports and surveys consistently highlight, sexual harassment remains a real issue for employers. 

In July this year, the Women and Equalities Committee published its report into sexual harassment in the workplace and acknowledged that employers have failed to tackle the issue, citing the fact they practice ‘paper-based compliance’ and do not have a ‘concrete and rigorous approach to the issue’. The report calls for mandatory sanctions and a code of practice similar to data protection and money laundering.

Additionally, a survey of almost 1,800 police staff in ‘civilian roles’ in England, Wales and Scotland was recently carried out by Unison. Staff surveyed included police community support officers, crime scene investigators, clerks, fingerprint experts and detention officers. 

Half of respondents confirmed they had heard sexualised jokes and one in five had received a sexually explicit email or text from a colleague. Around one in 25 said they had been pressured into having sex, and one in 12 had been told that sexual favours could result in preferential treatment. The National Police Chiefs' Council said such behaviour must be ‘rooted out’.

The message from the Pizza Hut case, the Committee report and the Unison survey is that more needs to be done, not just in relation to sexual harassment but discrimination generally. Employers need to redouble their efforts to advise employees and workers about the standards expected of them, train in relation to equal opportunities and have policies in place which are effective and ‘live’. 

A number of employers are doing a great deal more. It is worth considering undertaking a ‘self audit’, in particular in larger organisations, to understand if there are any pockets in the organisation, or companies in a corporate group, where there may be more incidences of grievances and claims relating to discriminatory conduct generally. 

If this is found, then employers need to take proactive steps to root it out. Thorough investigations need to be undertaken, which should be documented, and disciplinary action taken if necessary. In this way, the employer can be as sure as possible that it is aware of any latent liabilities and can show it has taken appropriate action. 

Jonathan Maude is a partner and chair of the UK/EU employment law committee at international law firm Vedder Price