Before our Christmas party every year, I make it clear to everyone, in a very quick and light-hearted way, what the rules are,” says Binna Kandola, co-founder and senior partner at business psychologists Pearn Kandola. “Don’t drink and drive, look after yourself and others, and remember that you are still at work and you want to be able to look your colleagues in the face in the New Year.”
Kandola is probably correct to assume that his organisation of highly qualified healthcare professionals will stay out of trouble. But as party season gets into full swing, no one can be truly confident that the wave of revelations of sexual harassment and predatory behaviour will not touch their business. What started in Hollywood became a full-blown scandal in Westminster. And it is surfacing long-hidden issues inside almost every sector and every business, giving victims – usually, but not always, women – the confidence to speak up and believe they will be listened to.
People Management asked for HR professionals’ own experiences of investigating and acting on allegations of harassment and discrimination. In their entirety, these stories formed a depressing portrait of widespread malfeasance some perpetrators had clearly felt would always stay hidden. The individual details are shocking: from the hand ‘quickly moving up my skirt’ at the bar, to the inappropriate comments about dresses and figures to unwanted, sustained suggestions about sexual relationships.
“It’s a sad fact that sexual harassment has never really gone away in the workplace,” says CIPD chief executive Peter Cheese, who also notes how it is generally tangled up with other major workplace problems such as discrimination. “It is unfortunately endemic and widespread, and comes with many things corporate culture has sought to address, such as casual sexism and a basic lack of respect.”
Harassment, as Cheese suggests, flourishes in a culture where discrimination is widespread. But this is, perhaps, a once-in-a-generation opportunity to confront entrenched inappropriate behaviour of all kinds. It puts HR on the frontline of investigating and acting on allegations and tackling ingrained attitudes. But the question is: where do you start?
The law is relatively clear. Individuals have been protected in the UK since the introduction in 1975 of the Sex Discrimination Act – legislation that was incorporated in the Equality Act 2010. For offending employees, such cases could mean dismissal and disgrace; for employers, it could mean unlimited compensation awards and lasting reputational damage.
“The law is is very protective of individuals,” says Paula Rome, employment partner at Shoosmiths. “And sexual harassment is relatively easy to sort out if everyone understands what the law determines as ‘acceptable’ and ‘unacceptable’ behaviour.” The problem is, many companies turn a blind eye to transgressions or trivialise them. A report last year by the TUC in association with the Everyday Sexism Project, Still just a bit of banter?, revealed sexual harassment is both endemic and largely unreported.
“People talk about times having changed, and what was once acceptable being unacceptable now, but I don’t remember a time when sexual harassment was ever ‘acceptable’ – it was just tolerated,” says Kandola.
And the reason firms haven’t done more to stamp it out is that they are more concerned with protecting themselves than their employees, he claims. “I’ve seen it myself – even in organisations that win diversity awards. Lots of HR teams collude with harassment, which explains why, when you ask people why they haven’t reported an incident, they will often say ‘HR wouldn’t take it seriously’.”
Sexual harassment is not about attraction or even sex, says Kandola: “It’s all about power. So many perpetrators are powerful men and their victims are junior women who are afraid to speak up. The more successful you are in your job, the more likely you are to get away with it – and the more you get away with it, the more omnipotent you feel.”
The Equality Act defines sexual harassment as when someone engages in unwanted conduct of a sexual nature, which has the purpose or effect of either violating someone else’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual. Employment tribunals look at the recipient’s perception, the circumstances and whether or not it was reasonable for the conduct to have had the effect the employee claimed.
While the law is very protective of individuals who bring claims, it also aims to protect the alleged perpetrator and the organisation from someone who is ‘hypersensitive’. Kevin Charles, consulting barrister at Crossland Employment Solicitors, says: “Sometimes people think the law creates a clinical work environment, where no one’s allowed to pay someone a compliment or ask them out for a drink. But in fact, the law aims for a balance, and it actually does a really good job of that.”
The definition of ‘conduct’ is wide, and encompasses verbal and physical acts, including imagery, pranks, jokes, ‘banter’ and more. It doesn’t have to be aimed at just one individual, or even directly at anyone. A tribunal example illustrates this: a data entry clerk gave evidence that during her shift she had been aware of male colleagues downloading pornography onto a computer. They hadn’t shown her the images, and she didn’t complain at the time, but, while her employer found no harassment, the tribunal disagreed, concluding the men’s behaviour had undermined her dignity, so harassment had therefore taken place.
You should never accept the defence that the alleged harassment was ‘just a bit of banter’ – a tribunal certainly won’t. Charles says: “There is no legal definition of banter; all tribunals want to know is if it fits the legal definition of harassment. And although it may have been going on for years [another common defence], tribunals are acutely aware that people apparently participate in banter as a coping mechanism.”
As well as sexual harassment itself, the law also prohibits unfavourable treatment because an employee has either rejected or submitted to harassment. For example, if an individual rejects their boss’s advances and is denied promotion in spite of being the best fit for the job, or a consensual relationship comes to an end and one of the parties is ostracised and victimised.
What does this mean for employers? They are ‘vicariously liable’ for employees’ actions ‘in the course of employment’. This definition too is very wide, as Rome explains. “It can be the Christmas party, Friday night drinks, celebratory weekends for the sales team, training away days or foreign conferences. I’ve seen a couple of very nasty incidents arising from the last one – people are away from home, they’re in a hotel, they’re often married and there’s lots of alcohol. It doesn’t end well.”
Employers need to be able to demonstrate they have taken ‘all reasonable steps’ to prevent the conduct. Pamela Macaulay, lawyer at Morton Fraser, says: “They have to do much more than simply point to an anti-harassment or equal opportunities policy that they have in place.” As a starting point, they need to make sure everyone is aware of such policies (they should be in the employee handbook and on the intranet, for example), communicate them regularly, explain exactly what behaviour is not acceptable and the importance of people’s perceptions, and urge care in the way employees interact with each other. The policies should also set out how to raise a concern, how the organisation will address it (outlining options from the very informal, through mediation, to more traditional grievance and disciplinary procedures) and timelines.
“‘HR has an important role in setting the appropriate policies and processes, and as a safe channel for concerns, to provide advice and support to individuals and insights on the culture,” says Cheese. “It also needs the confidence to respond objectively to claims that are made and to challenge where it sometimes must to properly bring perpetrators to account. For small businesses or individual workers, other channels may need to be developed. Everyone should be able to come to work and be treated fairly and with respect.”
While employees might complain to their boss or to HR, it’s often the boss who’s the problem, so Kate Palmer, head of advisory at Peninsula Law, advises setting up a dedicated confidential reporting process, and providing an email or phone number for a designated individual within the business, or outside it, to encourage people to speak out. They should be trained in handling difficult, often very emotive, conversations, and carrying out investigations.
Regular training around sexual harassment and equal opportunities for leaders, managers and employees is important too. “A training exercise that took place 10 years before an incident will not demonstrate to an employment tribunal that a company has taken reasonable steps,” says Macaulay.
The first thing you have to do if someone makes a complaint is assess its nature and severity. This involves investigating the state of mind of the complainer too. “It can be harrowing for an employee to relay what’s happened, and you need to give them support, make them aware that you will treat the complaint seriously, encourage them, if necessary, to disclose the full scope of the issues and reassure them that there will be no retaliation either during or after the investigation,” advises Macaulay.
Charles emphasises the importance of discussing with the individual how they would like the issue to be treated. Some want it to be an ‘informal’ complaint, perhaps resolved through a quick chat with the perpetrator and then a three-way conversation. “Many people realise they’ve been stupid and apologise, but it can be useful to do some mediation and coaching work with them,” he says.
If the victim wants the matter dealt with more formally, you need to launch an investigation and obtain evidence, such as emails, texts and CCTV footage, and interview witnesses. Sexual harassment can be a very nuanced area. Not only do different people have different perceptions about what was said or done, but the alleged offence may have taken place behind closed doors, with no witnesses – so, initially, all you have is one person’s word against another.
The investigation has to be independent, because the alleged perpetrator is innocent until proven guilty: “You have to assure both parties that you are taking the matter seriously but that there will be neither a whitewash nor a witch-hunt,” says Macaulay.
It may be helpful to use a third party to conduct the investigation, especially where senior people are involved, to reduce the risk of bias or intimidation creeping in. This may also count in your favour if the case gets to tribunal, as it is evidence you have acted fairly and taken all reasonable steps. “If you don’t take the allegation seriously or investigate it appropriately, you could expose your organisation to further claims, including victimisation,” warns Macaulay.
While the investigation is being conducted, you may be able to separate the employees by temporarily moving one or both of them into different roles. However, you may have no choice but to temporarily suspend (on full pay) the alleged perpetrator to avoid any risk of them intimidating witnesses or tampering with the evidence. While it might take time to interview witnesses, you should aim to conduct the investigation as quickly as possible – both to satisfy the complainer and to try to limit the impact on the alleged perpetrator, who may ultimately be judged not to have committed sexual harassment.
“You have a duty to protect the alleged perpetrator, because these are awful allegations for anyone to have to counter, whether or not the claims are ultimately upheld,” says Rome. The apparent suicides in November of two Labour politicians who had been suspended from the party over allegations of misconduct are a salutary reminder of the stakes involved.
Sometimes, an employee who makes a complaint subsequently decides they don’t want to pursue it. This leaves the employer in a difficult position. If they don’t pursue the investigation, they could later find themselves accused of failing to reassure the individual that it was safe to speak out, or of taking the ‘convenient’ option not to investigate.
However, if the employer decides to go against the individual’s wishes and pursue the complaint, that person may feel the employer is not supporting them adequately, and might even resign and argue they have been constructively dismissed because of a breach of implied trust and confidence. There’s no easy answer. “Ultimately, it’s a balancing exercise for the employer,” says Macaulay.
Occasionally, you might need to bring the police in – but you can only do this with the victim’s consent. Rome warns that if they choose not to involve the police even though they have been attacked, you should keep a note of the conversation to protect against subsequent claims.
Managing the tension between conducting a thorough investigation and maintaining both parties’ confidentiality can be a challenge. It demands “careful, open questioning”, notes Macaulay, who says the company could also use the current media storm as a reason to run a refresher session on equal opportunities and sexual harassment.
If the alleged perpetrator is found guilty, your usual disciplinary proceedings need to be observed. Sexual harassment needs to be stamped on, but the punishment has to fit the crime. “If employees feel the punishment is too punitive, it will stop others coming forward,” says Kandola. “You hear things like: ‘I didn’t want him sacked; I just wanted an apology and for him to stop this behaviour.’”
If the perpetrator escapes dismissal but the claim is partly upheld, the company has a duty to both employees. Usually it will try to reduce potential tension by finding an alternative role for the individual who has been sanctioned, but it could also discuss potential redeployment with the complainer.
“Some people behave in certain ways with no understanding of how it makes other people feel,” says Kandola. “It might be something as apparently innocuous as standing too close to someone. People will often say: ‘I feel as though I’m walking on eggshells around her’ – without realising that it’s their own behaviour that has to change. I always say to people that if they are in any doubt about how to behave, they should err on the more formal side.”
Afterwards, the employer has to embark on the arguably bigger task of rebuilding relationships and trust in the organisation as a whole. “Context matters,” says Kandola. “In the right context, even bad people will behave better. In the wrong context, bad behaviour flourishes.” This context starts with respectful advertising – you need to position yourself as an equal opportunities employer – and induction processes that take new recruits of all levels of seniority through your equal opportunities and anti-harassment and bullying policies in detail.
You also have to ensure that the same culture permeates the entire organisation. “Leaders need to set the tone and role-model the right behaviour,” says Kandola, who argues that many of us, women as well as men, are more complicit in sexual harassment than we realise – which is why it is still a big issue 42 years after it was made illegal. “Despite the ‘reputations’ of some of the high-profile offenders, people still choose to work with them, presumably believing that sexual harassment is the price they have to pay for career benefit,” he says. “Should we really be putting up with it in the interests of our higher goals?”
It’s clear we shouldn’t. And if the current environment is not sufficient reason to tackle individuals and cultures that are perpetuating discrimination, the removal of tribunal fees is, say lawyers, likely to empower victims to seek legal redress. Employers must show they are tackling the issue – because, ultimately, if a claim is brought before a tribunal it usually indicates that processes and procedures in the workplace have failed badly. “Organisations think they are protecting themselves by trying to ignore or hide a problem,” says Rome. “Actually, they are doing exactly the opposite.”