Workplace Harassment in 2016

Posted in : HR Updates on 23 August 2016
Matthew Hamilton
Think People Consulting

As an employer or HR professional, workplace harassment is a very real concern. In this past year we have seen a concentration in the number of reports and news articles relating to workplace harassment, with some high profile cases occurring locally to Northern Ireland, particularly in relation to workplace sexual harassment.

This month the Guardian newspaper cited a study conducted by the Trade Union Congress that found a staggering 52% of women had experienced some form of unwanted behaviour in work, including physical acts of groping, sexual advances and inappropriate jokes. What may be most shocking is that the report’s authors stated that more than 10% of women had experienced physical contact that would be serious enough to be considered sexual assault.

A very recent case occurring in Northern Ireland which involved the alleged sexual harassment of two women working at a KFC franchise was eventually settled for £30,000. Additionally, some cases arising in England, involving the apparent discrimination towards women with regard to workwear (e.g. being sent home for failing to wear high-heeled shoes) have raised the profile of ongoing inequality in many workplaces and suggest that perhaps, where it comes to discrimination and harassment, some employers have taken their eye off the ball.

What may be unsurprising to some employers is that it only takes the actions of one employee to cause substantial harm to your employees and your business. The ‘real’ cost of workplace harassment should be measured, not just in terms of possible legal costs of responding to or settling successful claims, but also by the loss of talented employees who feel they have no other option but to resign, low morale, poor productivity, poor attendance, the cost of recruiting to replace lost staff and possible reputational damage to loss of customers and clients.

The Labour Relations Agency state that frequent media reports of large compensation awards or high profile organisations may give the indication that “workplace harassment and bullying is burgeoning” but point out that employees may also be more willing to assert their rights given increasing public awareness. If that is the case, then surely employers equally must have a willingness to raise employee understanding about workplace harassment and take appropriate preventative action.

What steps can employers take to ensure they are protecting their employees?

Step 1 - Education

The first step any employer should be taking is educating their employees and their managers about what exactly constitutes harassment. Too often tribunals are confronted with a lack of understanding from employees and employers about what behaviour constitutes harassment, or the excuse that this was just “office banter” is rolled out. The primary consideration will always be the perception of the intended (or often unintended) recipient in these cases.

Key issues employers face when defending a claim of harassment include evidence that they have taken reasonable steps to inform their employees about acceptable behaviours in the workplace; displaying a notice in a staff room or noticeboard is simply insufficient. Employers would be wise to introduce guidance at the start of the employment relationship (e.g. induction) and refresh this guidance on a regular basis through training and refresher courses. E-learning also provides an opportunity to track and monitor those staff who have not received training on equality, diversity or bullying and harassment for some time. All employers should be keeping records of who has received the training and the dates this these courses were last delivered. No employee should be left out; seniority does not mean that training is optional.

Step 2 – Policy Reviews

If your organisation does not have a specific policy for dealing with claims of bullying or harassment, you may find your existing disciplinary or grievance procedures insufficient to ensure you take a best practice approach. Employers have often been accused of not approaching such cases appropriately from the start or for downplaying the seriousness of the complaint. Having a specific policy to deal with such complaints will ensure that the approach you take is rigorous, compliant and consistent. All employers should remember that statutory procedures exist in Northern Ireland; remember that your policy should either match or enhance the statutory disciplinary or grievance process if it does not already refer to your existing policies. You may choose to link your policies together, and provide specific guidance on what to do with claims of harassment that may be submitted as grievances, or where concerns are raised in absence of a direct complaint.

Just as important, your policies should be appropriate for your workplace. While it may seem a good idea to adapt something already in existence, you may find it does not fit with your existing workplace environment or specific company requirements. If you do have an existing policy, make sure you are reviewing it on an annual basis to ensure it is still fit for purpose.

Step 3 – Never Assume You’re Immune

Some organisations may be fooled into thinking that their company culture is sufficiently harmonious to preclude harassment occurring. You may find this approach difficult to defend if an issue arises. No company, sector or profession is immune to harassment. Where employers have failed to take reasonable steps to educate, communicate and take action in line with their policies – they may fall foul of the law.

Regardless of how many employees you engage, it will only take one person to feel harassed before you find yourself dealing with a serious issue.

Step 4 – Take Action

Where issues do arise, don’t make judgements; start investigations. Your only option where serious complaints are made is to take action and start your processes without delay. Select a suitable manager of the right seniority to conduct a thorough investigation to establish the facts.

Be aware that while some behaviours in themselves may appear to be innocuous, taken together they can form patterns that may well constitute harassment. A single incident can also amount to harassment, and careful consideration should be given to the perception of the person raising the concern.

Action should also be taken where a manager becomes aware of a concern via a third party. Does your policy cover what should happen where a report is made from an employee witnessing unwanted behaviour? Behaviour or conversations not directed at a particular individual can still be considered offensive, degrading, intimidating or as having violated that person’s dignity.

Step 5 – Be Mindful of the Brexit Effect

The Think People HR Insights last month highlighted a concerning rise in Brexit related harassment directed towards EU nationals, non-EU nationals and pro-EU supporters. Managers should be reminded that someone who is harassed on the basis of a protected characteristic they in fact do not possess can still bring about a successful claim; this would be the case if someone was asked to “go home” on the presumption that they were a non-UK national.

If your workplace has a large number of employees whose first language is not English, you should also consider providing your policies and procedures in alternative languages. Ensuring your policies are accessible for everyone is absolutely essential.

Anything Specific for Northern Ireland?

Employers and HR professionals may also recall additional protections under Equality legislation for Northern Irish employees, specifically for political opinion or affiliation. As the referendum was particularly politically divided in N.I, there is an additional dimension to consider when looking at any concern relating to harassment, particularly when it comes to religion or political association.

In summary, the number of reports of harassment directed towards employees should be a wakeup call to all employers. Office “banter” and “harmless jokes” can land employers in serious difficulty. If you follow the steps above, you will certainly be able to mount a credible defence and demonstrate that you’re doing what you need to do as an employer to ensure the wellbeing of all your employees.

This article is correct at 23/08/2016
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Matthew Hamilton
Think People Consulting

The main content of this article was provided by Matthew Hamilton. Contact telephone number is 028 9031 0450 or email Matthew.Hamilton@thinkpeople.co.uk

View all articles by Matthew Hamilton