Sadly, sexual harassment in the workplace continues to be a reality faced by many employees. In most cases, employers will be legally responsible for harassment suffered by their staff during the course of employment. So, what can employers do to minimise the risk of harassment occurring in the first place?
There are two basic steps employers should take, and many are already doing so. First, have a policy in place which explains what harassment is, that it will not be tolerated, and sets out a framework for addressing complaints and taking disciplinary action up to and including summary dismissal for perpetrators. Secondly, training is important as it will help ensure the policy is known and understood in the context of the specific organisation.
However, despite many organisations having policies and training in place, sexual harassment still occurs. Organisations keen to minimise sexual harassment in the workplace, can take further steps, including:
Improving the quality of policies and training. To ensure policies and training are meaningful they must be complied with in practice. This includes communicating with all employees upon joining the organisation and periodically throughout employment. The material should be tailored to the organisation and attendees, and ideally be focused on sexual harassment rather than all equality issues together.
Recognising environmental factors that create a higher risk of harassment occurring. Take time to consider where risks arise in your organisation. Many risk factors are common: high stress environments, late nights/long hours, working between just two colleagues (especially where there is a power imbalance), or any events involving alcohol or close contact. Once identified, consider what extra measures could be put in place to reduce the risk of harassment.
Diversity is key. A lack of diversity throughout an organisation, including at leadership levels, can increase the risk of harassment. We also know that certain groups are at greater risk, in particular women and where there is intersectionality of protected characteristics. By embedding diversity into all layers of an organisation, practices which reduce harassment are more likely to flourish.
Instilling personal responsibility for making policies a success and changing the culture. Everyone has a role to play in maintaining a safe culture. This comes in two key forms – the first is ensuring everyone understands that it is not acceptable to be a bystander. Secondly, those in leadership roles must be consistently proactive in supporting and talking about the policies and standards expected. Everyone should be a visible champion of the harassment free workplace.
Support for reporting. Until employees feel safe and supported in reporting harassment, an organisation may have an inaccurate view of whether a problem exists, its extent and as such how to address it. Ensuring there is an appropriate way for those with concerns to come forward helps the organisation understand what is happening, supports those affected, and may reduce the risk of incidents occurring. Appropriate levels of confidentiality and psychological support should be built into any safe reporting system.
Publicly committing to improvement. Committing to reducing harassment publicly is key. To make this meaningful, organisations may wish to include targets and progress updates as a standing board agenda item, and ensure that any actions agreed are followed through.
These missing ingredients can really make a difference. They have been researched by many organisations, as described in the recent Enough is Enough report by Engender – Scotland’s feminist policy and advocacy organisation, on ways to tackle workplace sexual harassment in Scotland.
The ideal outcome is of course to create a workplace free from harassment. However, if an incident does occur, an employer that can demonstrate that they have taken all reasonable steps to prevent the harassment may have a statutory defence to any claims that arise. We know that stale policies and training alone will not suffice. In practice, the ‘all reasonable steps’ defence is a high bar for employers to get over. However, by taking the actions set out above, they would be in a far stronger position to achieve the aim of avoiding harassment entirely, and failing which, to succeed with reasonable steps defence to any claims that do arise.
Laura Jackson is a senior associate at Dentons