It’s fair to say that the whole language and culture of the workplace has undergone a seismic shift since the start of the #MeToo campaign. Although we do not have a new sexual harassment statute as such, given how far we have moved in this area over the last two years, we might as well have.
All companies by now surely know they must have policies in place making it very clear that sexual harassment is not to be tolerated. If they do not, they are at risk. They can be held vicariously liable for the actions of their employees. Being able to show they took reasonable steps to avoid such behaviour may assist them in the event of a claim.
However. so much more is now needed than the introduction of appropriate policies and some periodic training. These have been the kind of steps employers have taken in the recent past. But many companies and organisations appreciate they now need actively to put building blocks in place to affect a change in culture.
There is also the question of whether sexual harassment laws mean companies should have the right to ban or regulate relationships at work if they so wish – if so, what other steps they should be taking to tackle the potential #MeToo issues they are likely to be concerned about?
Employers are not prevented from introducing uniform relationship bans. It is entirely a matter for them to decide what works best for them, but they need to comply with the law if they do. That means being neither directly nor indirectly discriminatory in their enforcement of that policy. Factors such as gender and religion, therefore, need to be carefully considered and accommodated.
One of the major issues in the workplace has been the abuse of subordinate employees by those more senior to them. If such relationships are disclosed, and they are found to be between consenting employees, many may feel they can be allowed to continue, possibly with particular arrangements being put in place to manage the situation. Arguably also, relationships between employees at around the same level, with no influence over one another, should not be banned. After all, so the argument runs, that is how many relationships get started in the first place.
Whatever the particular employer's view in that respect, certainly they should not now avoid considering the introduction of a dating at work policy. Too many issues have arisen in that way to make this a matter to ignore, particularly after #MeToo. Yet there must be a margin of discretion for employers, as to how far they wish to go in introducing these. Whatever view they take, they should nonetheless be aware that even nowadays, many employees are reluctant to, or simply do not, report harassment that may take place in the workplace. So there is a real danger that employers are not aware of just how big a risk they are running.
We will therefore conceivably continue to see inventive strategies being introduced in the future. For example, some organisations are now setting up specific internal committees to monitor and introduce behaviour programmes so as to drive cultural change. We may also see the introduction of legislation to compel companies to appoint a specific member of the board with responsibility to monitor all settlement agreements which have been entered into where there has been a claim of discrimination and/or harassment.
Some of these proposals may seem radical to us today, but in a few years’ time I suspect they will seem mainstream. After all, it was only a few years ago when the very idea of having laws to prohibit discrimination based upon age was greeted by some with incredulity. Yet who now does not see age discrimination legislation as an established part of our employment law regime?
Richard Fox is an employment law partner at Kingsley Napley