Last year’s Uefa European qualifier between England and Bulgaria in Sofia will forever be remembered for the worst and best behaviour of which people are capable. On the one hand, the conduct of a section of home fans who chanted racist abuse and performed Nazi salutes, directed towards the England team’s black players, was deplorable. On the other, the players who called out the behaviour, stopping the game until the abuse had been addressed, with the support of England manager Gareth Southgate, were commendable.
While employers are unlikely to be faced with a situation akin to harassment from a group of this particular size, nor a group channelling such poisonous herd mentality, it does raise some questions about how they might address behaviour of a similar nature.
What if this happens in the workplace?
If an employee were to share concerns about being harassed, they should be able to expect the full support of their employer. Harassment under the Equality Act 2010 means “unwanted conduct” related to one or more of the protected characteristics, of which race is one. Harassment is further defined by the Act as “conduct that has the purpose or effect of violating someone’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment” for someone.
Prevention is better than cure
Employers need to have robust policies in place to deal with this kind of problematic behaviour and should be expected to follow them at all times. However, failure by businesses to follow their own policies is unfortunately not untypical.
Simply having a policy in place is no use unless the employer is prepared to actively follow it. Failure to adhere to their own policies puts companies at risk of being taken to an employment tribunal – which has no cap on the level of compensation it may award. This poses a huge reputational risk for any business. No company wants to be known for harassment of workers. This affects an organisation’s ability to recruit and retain staff and can also be deeply off-putting for customers and trading partners.
Good employee relations can be fostered where staff receive training about anti-harassment policies, both to raise awareness for those who may be tempted to engage in problem behaviours, and to give confidence to employees that harassment is not, and will not, be tolerated.
Anti-harassment policies are essential and foundational in good governance, and should outline what kinds of behaviours could constitute harassment, alongside how an individual’s personal perception of harassment is important and relevant. In most cases, anti-harassment policies sit within an organisation’s guidelines on equality, diversity and inclusion.
Without such procedures to guide behaviours, there is a real risk of claims in the employment tribunal for harassment relating to one or more of the protected characteristics under the Equality Act, with liability not only in relation to employment rights (and any compensation awarded), but also exposure to failings of governance standards and regulatory compliance. Terms of reference for boards of directors and committees now often include specific references to the company’s equality, diversity and inclusion policies, with measurable objectives as part of its risk management systems.
Directors and boards, including trustees and council members, who ignore or sideline equality, diversity and inclusion issues do so at their peril. There is no place for harassment in the modern workplace, and those who do not take it seriously, or act accordingly, may well face repercussions, including claims and reputational damage.
What to do, and what not to do
- Have robust policies in place, defining all behaviours that could constitute harassment.
- Ensure all policies are understood and actively followed by all employees.
- Include the anti-harassment policies within your organisation’s guidelines on equality, diversity and inclusion.
- Ensure all employees (including senior management teams) undertake anti-harassment training – this ensures an educated workforce, reduces the risk of undesirable behaviours and fosters good employee relations.
- Fail to be prepared. Ensure clear policies are in place and all employees are aware of and understand them.
- Divert from your company’s policies – this puts you at increased risk of being taken to an employment tribunal.
- Ignore any potential claims, no matter how small of an issue it may seem. Everyone’s perception of harassment is important and relevant.
Jennifer Maxwell-Harris is an employment partner at Joelson