Employment Law at 11 - 3rd May 2024

Posted in : 'Any Questions' Webinar Recordings on 2 May 2024
Legal Island
Legal Island
Issues covered: Harassment in the Workplace

May's topic is Harassment in the Workplace

“We need a shift in culture so that every single instance of sexual harassment is investigated and dealt with.” Tarana Burke, #MeToo founder

So says the introduction of the new guidance “Eliminating Sexual Harassment from the Modern Workplace” produced by the Labour Relations Agency (LRA) and the Irish Congress of Trade Unions.

Christine and Seamus will hear from Claire Webb of the Labour Relations Agency in what is sure to be an engaging discussion. Claire assisted in drafting the new guidance released just last month, so we’ll be hearing direct from her on its impact and implications. Join us and get up to date on the new guidance, best practice and what you can do to ensure your staff’s safety and reduce the risks to your organisation of costly claims.

Please note that the employment law matters discussed in this webinar apply primarily to Northern Ireland.

 

Recording:

 

Transcript:

Christine:  Good morning, everyone, and welcome to Employment Law at 11, sponsored by MCS Group. My name is Christine Quinn. I'm a Knowledge Partner here at Legal-Island. I'm joined as usual by Seamus McGranaghan of O'Reilly Stewart Solicitors. So you're very welcome, Seamus, and you're welcome, everyone.

So what are we talking about today? We're talking about sexual harassment in the workplace. Tarana Burke, the founder of the #MeToo Movement, said we need a shift in culture so that every single instance of sexual harassment is investigated and dealt with. And that is the opening to the new guidance just released in March there. It's "Eliminating Sexual Harassment from the Modern Workplace" produced by the Labour Relations Agency and the Irish Congress of Trade Union.

So today, Seamus and I are going to hear from Claire Webb of the LRA. Claire assisted in drafting the new guidance released just last month, as I said. Sorry, March it was released. So we'll be hearing direct from her on its impact and implications.

Her counterpart, Clare Moore of ICTU, assisted in the writing as well, so it was a collaboration between those two groups.

So at Employment Law 11, we are all for flexible working. In that spirit, Claire, who doesn't work on a Friday, has recorded some material for us. We're shaking things up a little bit this month, so it'll be a little bit different this morning.

So thanks as always to our sponsors, MCS Group. MCS help people find careers that match their skill sets perfectly, as well as supporting employers to build high-performing businesses by connecting them with the most talented candidates in the market. If you're interested in finding out how MCS can help you, head to www.mcsgroup.jobs.

As usual, we're going to kick off with some polls, everyone, if you could get involved in those. Maria is in the background just preparing the first one. We want to gather a bit of information.

Does your organisation currently have an up-to-date harassment or sexual harassment policy? If you could just select yes or no.

Regular listeners will know what Seamus's and my reaction to this will be, so we hope you've all been listening. Eight-one per cent have been listening, and they've got their policy sorted, Seamus. Good news.

Seamus:  Excellent. Yeah, 81% is right up there where you want to see it. And I suppose that we'll maybe just have a chat in and around the specific policy that people have for sexual harassment, whether or not they have an inclusive policy where there's a number of issues arising in their policy covering different types of harassment, intimidation, bullying. Sometimes you'll see a harassment and bullying policy together.

But we know that the position of the guidance here is that you should have a separate policy for sexual harassment. That's the best way to arm yourself in the first instance for this.

So it's great that there's a policy in place, but hopefully people are moving towards seeing this as an individual policy to have specifically on sexual harassment.

Christine:  Yeah. Brilliant. Thanks very much, Seamus.

So, our second poll is do you currently provide all staff with sexual harassment awareness training? Yes or no?

Again, we're going to be discussing just the importance of training. So it's all very well having that policy, but what are you doing with it? Do your managers understand it? So if you could select yes or no there.

We've got 61% saying no training. We're hopefully going to explain, Seamus, why we need to turn that around, aren't we?

Seamus:  Yeah. So that's a common theme, and it's always the issue that people say, "Well, look, I've got a policy for that". And hopefully, the policy that you have is a policy that is accessible within the workplace, that people know where to get it, they know it exists, they know how to get their hands on it if they need to review it or to read it.

But really, where the case law is pushing is that it's just simply not enough to have the policy. It's almost at the point where it's simply not enough either just to do training. It has to be sort of an entire collaborative approach. It has to look at the culture of the organisation. It has to run from the top of the organisation down to the bottom.

If you think of it in a way of a needle and thread, the policy should be there, but the policy should weave itself throughout the organisation very much on a daily basis.

And then one of the key things probably there that you'd be thinking about is to make sure that it is a workplace where people can confidently raise a concern that they have about sexual harassment.

The vast majority of these cases in sexual harassment go unreported or go unreported for a period of time. People are afraid to raise the complaint because they're afraid of reprisal, they're afraid of not being believed, and they are afraid of losing their jobs as well if they raise a complaint and then it's not upheld. Particularly in circumstances where the perpetrator can be the line manager, and they are terrified about raising a complaint about their line manager.

So the idea here is that the training goes so far, but it has to be more of a centralised system whereby employees know that there's a policy, everybody is trained, but through the training, it really has that open door feel. If people have an issue, they know where to raise it, and they know that it'll be taken seriously whenever they do raise it, that something will be done.

Christine:  Brilliant. Thank you, Seamus.

So our third poll, we're not going to share the results of this. This is purely just for a bit of information gathering. So if you would like more information on Legal-Island's all-staff training course on harassment and sexual harassment, if you could select yes there. If you prefer not to hear it, please select no. And we'll be in touch. But we're not going to share that result. It's completely private, so please just vote as you see fit, and we'll be in touch after the webinar.

Now, we've got a fourth question for you. This is based around a bit of an unusual debate that has been going on, on social media. It's called Bear versus Man. And it started with a married couple, a male-female married couple, who were having an argument for whatever reason, best known to themselves, about who you would rather be stranded in a forest with. Would you rather be stranded in a forest with a bear or around a man?

The woman decided she would rather be stranded with a bear. And it has been much debated on social media, as you can imagine. It's actually a very interesting debate, but we wanted to see what you guys would think.

Would you rather be stranded in a forest with a bear or a random man? So if you can vote now, we'll get a bit of a feel for what the Employment Law 11 audience thinks of this.

As I say, it's a bit of an unusual debate, but it is worth having a look. So 65% are in the camp of a random man. Seamus, I think I would say that's kind of the opposite of what the internet has been telling us. What are your thoughts on that, Seamus?

Seamus:  Well, I suppose the internet is a weird and wonderful place. I was just having a look there at Twitter in relation to it. There's a hashtag for it, and you can look it up. You do get all of the different views and opinions of where it comes from.

But you can see the issue there on this one. I think the reality is that the vast majority of those cases we look at in the case law, the media stories that you hear about, it tends to be that it's the male that is the perpetrator. Not always, but tends to be that way. And there's definitely a bit of fallout happening on Twitter with maybe men that are offended by the position on it.

And definitely some tongue-in-cheek stuff there as well, if you wanted to go on a wave over your break time, your lunchtime, and you get a chance to look at it.

But it's been one of those polarising-type debates that have happened where you can sort of see the differences across the views and the thoughts about this specific question that's been asked.

I suppose it is coming from a place of maybe the backdrop to #MeToo and all of the media that is out there, moving through to cancel culture, to coming out of cancel culture and saying people deserve a second chance. I mean, it's all there, but we're looking at it from a legal perspective.

But just an interesting debate there if anybody wants to have a look at it. I'm glad to see that we have a sort of good balanced view there in relation to it.

Christine:  Yeah. So Maria has dropped a link into the chat if anyone wants to have a look. It's an article that kind of explains the debate in a more nuanced way. But if you want a laugh or if you want to see what all the fuss about, do have a look at the hashtag #bearvsman, and you'll get views from the far right, the far left, and everything in between. It is very interesting.

Brilliant. Thanks, everyone, for joining in there.

So as usual, please do drop in any questions you have for Seamus as we go, and I'll ask them as and when.

You'll find the LRA guidance that we're going to be discussing in the attachment section of the webinar. It is extremely readable. It is extremely practical. I would urge you to save it on your desktop or print out a copy and keep it on your desk. It's very, very usable and very useful.

So we're going to just cue up Claire's first video. As usual, technology does take a little minute just to kick in. So Maria is in the background doing that for us now.

We're very grateful to Claire for providing these. And I am now seeing the video. So yes, Maria, when you're ready, you can click start.

Claire:  It's lovely to be involved in this Legal-Island webinar. My name is Claire Webb and I'm Equity, Diversity, and Inclusion Manager at the Labour Relations Agency. My pronouns are she and her. And a quick visual description, I am a white woman with blue eyes and I have shoulder-length blonde hair, and today I'm wearing a black jacket with sparkly buttons.

I'm one of the authors, along with Clare Moore from Irish Congress of Trade Unions, who wrote "The Sexual Harassment Guidance", which was published in March and endorsed by the Minister for the Economy and Women in Business.

And before I start, I'd like to thank Legal-Island and Seamus for inviting me today. This format is a little different from the usual webinar, and it was to accommodate my part-time working pattern, which was very inclusive, so kudos and thanks for this.

I also mention it as inclusion is one of the cornerstones to safeguarding against sexual harassment, which I'll come to later.

So why did we decide to publish this guidance? Is it really necessary now that we're all more aware of sexual harassment following the amplification of the #MeToo Movement in 2017? Well, unfortunately, yes, it is. Sexual harassment is widespread and rarely a day passes without hearing in the media about well-known organisations who have got it badly wrong, who haven't done enough to prevent or deal with it.

And the statistics certainly are troubling. According to a 2023 people management survey, 52% of people professionals in the UK felt that there was no difference, or they were seeing more sexual harassment in workplaces over the past five years.

Another survey by Personio found that 49% of people do not report sexual harassment after experiencing it. Remember that just because there are few or no complaints in your organisation doesn't mean that it's not an issue.

As we set out in our guidance, in 2019, ICTU surveyed over 600 trade union members in Northern Ireland with experience of sexual harassment and sexual assault in the workplace, and 73% of those responses were from women.

Seventy-five per cent of respondents indicated that they did not report unwanted sexual behaviour to their employer. And of those who did report, 62% felt that it was not dealt with to their satisfaction, and in some cases reported that they'd been treated less favourably because of their complaint.

At least 40% of women will experience sexual harassment in the workplace. And the figure is even higher for minoritised women, such as disabled women, ethnic minority women, people from the LGBTQIA community, and younger women are also vulnerable.

We know that women are more likely to be subjected to sexual harassment, and that men are more likely to be perpetrators, but it can also be by a person of the same sex. Sexual harassment can happen in any workplace and can happen to anyone, and so what you need to be aware of is that there's usually a power dynamic between the harasser and the victim-survivor.

So sexual harassment is still a problem, and it's chronically under-reported. Why might employees not complain about unwanted sexual behaviour to their employer?

Well, the seriousness of the experience is often minimised, or the employee may have no faith in the employer's response. The employee may hold a vulnerable position in the workplace, such as in a customer-facing role or temporary staff. The employee may be afraid of retribution or retaliation, and there is stigma around complaining. There are also long-term harm consequences of sexual harassment.

Obviously, it is morally important for employers to safeguard against sexual harassment and deal with it correctly if it should arise. But there are also high costs to organisational performance, as it has an impact on productivity, engagement, absenteeism, staff turnover, and workplace culture, as well as potentially the legal costs and reputational damage should it go badly wrong.

Employees who've experienced sexual harassment have also got lower mental and physical health, job satisfaction, and motivation, and sexual harassment can actually be career-damaging and life-changing.

We recognise that sexual harassment is devastatingly pervasive and both the Labour Relations Agency and ICTU felt that it was important to be proactive on this issue and to tackle the structural causes of sexual harassment in the workplace, particularly as both have been co-design partners in the Ending Violence Against Women and Girls strategy led by The Executive Office.

And the trade union movement have been campaigning for many years to ensure that no one is subjected to sexual harassment at work.

The Agency is also a key delivery partner in establishing a workplace forum to support this strategy, so watch this space.

And I'm going to close this segment by briefly explaining what sexual harassment is in a workplace setting.

The key piece of legislation here is the Sex Discrimination (Northern Ireland) Order 1976. Sexual harassment occurs where a person subjects another to unwanted conduct of a sexual nature, for example, inappropriate sexual contact, or by subjecting them to other detriments, such as dismissal for refusing sexual favours, or for objecting to such behaviours.

It creates an intimidating, hostile, degrading, humiliating, or an offensive environment. And even if the perpetrator did not intend to cause offence or harm, their actions may still amount to unlawful harassment.

And it's important to note that an employer may incur liability for failing to take reasonable steps to prevent the inappropriate behaviours.

So sexual harassment can take on many forms from offensive comments, to inappropriate touching, to sexual harassment via digital means, such as social media. And you'll see in our guidance that sexual harassment can be unwelcome physical contact, verbal conduct, or non-verbal conduct. There are plenty of examples in our guidance, and a more detailed list is on the UN website. The link is in the guidance document.

So I'll pass you back to Christine and Seamus. Thanks for listening to this part.

Christine:  Thank you very much for that, Claire. That's a really great overview of why this guide is still unfortunately necessary, isn't it, Seamus?

Seamus:  Yeah, absolutely. And interestingly, just whenever I was looking at this, there was a headline in the "Belfast Telegraph? not so long ago. Some of the listeners might remember some of the issues that were happening at McDonald's in Northern Ireland.

But the headline read, "McDonald's faces one or two sexual harassment cases each week, boss admits, after STI outbreak at NI branch". So there's a headline for you. But the fact that there would be one or two sexual harassment cases per week. And my understanding is that's not a Northern Irish statistic. It's McDonald's overall in UK. But one to two cases of harassment per week.

We are looking at any workplace. And Claire makes a really interesting point there, that it's harassment in the workplace that we're talking about. For a lot of us, you can witness sexual harassment outside of your own workplace, but don't forget that that is somebody's actual workplace that it's happening in.

I think one of the types of industries that sexual harassment is most prevalent in is the hospitality industry, whether it's at bars, restaurants, nightclubs. Anybody within the hospitality industry, that's where the figures tend to be the highest. And maybe it is that people are out enjoying themselves, there's maybe alcohol involved, and that there is something that could happen.

But it brings me around to that important point that although it's harassment that happens in the workplace, it's not just those that commit the harassment that are responsible. The employer is vicariously liable for the actions of their employees when it comes to sexual harassment.

I suppose when looking at this guidance, the really important point here is that this is assisting employers not only in how to navigate and to deal with a sexual harassment complaint that comes along, but also it seeks to assist employers in terms of protecting themselves in relation to the steps that they must take.

And outside of any tribunal process or court process where there are significant damages and awards that are made against an employer, sometimes it's the knock-on effect of the public damage and the reputational damage that happens when these cases of sexual harassment come forward.

One of the most damaging things can be where the employer has not dealt with it properly. And you see some of the case law come along where either the employer has ignored it, has not believed the person where there has been clear evidence that it happened, and doesn't have the policies/procedures, doesn't have the culture within their workplace in order to deal with these cases.

So there's a real concern around damage to an employer's business if a case of sexual harassment comes along.

And you'll know yourself, as well, we talked previously in relation to wider aspects of due diligence that banks do when you apply for tenders from other organisations. They sometimes ask questions and they want to know, "Have you any on-going litigation? Have you had cases in relation to sexual harassment?"

So you can really see where not only the public push has been in relation to sexual harassment, but it's coming right down through business and all aspects of it. So it is important.

It is absolutely a circumstance where people now, I think, hear about #MeToo, and there's a bit of a, "Oh, this is all still on-going", but the reality of it is that it is still on-going.

Maybe it's just not as widely covered and maybe there are not as many famous people talking about the circumstances, but in a day-to-day work environment, you heard the statistics there that Claire had mentioned. Forty per cent of women will face sexual harassment in the workplace. That's almost one out of two you're getting there. And out of that, 62% felt that their employer didn't deal with it appropriately. So I think it speaks volumes.

I think for the purposes of our webinar and our discussions, it's not just about the acts of the sexual harassment. It is what the employer's responsibility is in relation to that. And the case law is telling us time and time again that the responsibility is on the employer to have steps to ensure that it doesn't happen.

You're explaining to staff, whether it's very young members of staff that are coming into your workplace at 16, 17 years of age, right up to older members of staff where excuses are made of, "Well, that's how things were in their day", and stuff like that for certain things that they say. There has to be that aspect where the employer is making the employees aware what the standards are, what the expectations are, informing and notifying them of the repercussions of actions if those things happen, and how it will be dealt with.

In addition to that, it's making sure that an employee is comfortable coming forward to put their hand up to say, "Listen, this has happened to me and I'd like the matter to be investigated and investigated properly".

So definitely there is an appetite. It's good to see. I mean, this guidance fresh out of the box in the sense that it was issued in 2023. And I think that there will be specific guidance also that will come directly from Labour Relations Agency following on from this too. So we should expect to hear certainly further about it from the Labour Relations Agency, also.

Christine: Yeah. I mean, we've got our assembly back, so there are exciting things in the pipeline. And if we only have to look to GB, they have strengthened their sexual harassment legislation.

I know Claire's going to go into it in a moment in our next section, but we have to get prepared. It is coming this way. I can't see them dropping it. It is a major issue. It might even end up being more robust than GB, because I know that people have been quite critical of the GB legislation not going quite far enough.

Seamus:  Yeah. It's exactly that. And there are various different types of sexual harassment that can arise. It's not just about somebody being touched inappropriately. There is the physical misconduct. There's the assault aspect of it, and some of these cases are . . . there's criminality around some of the actions that are maybe taken.

But you have the physical misconduct. You've also the verbal misconduct. And a lot of these cases that you read are where there are comments made, and consistent comments are made.

It could be visual, written material, text messages, memes. It can really be anything that you could think of. It's the isolating of individuals refusing to engage with them, right down the line to forcing people into sexual favours, penalising them for rejecting requests.

And it's the sort of old story of the nights out of the office and the Christmas parties when these issues tend to become really rife. So it's not just the situation of, "Somebody has inappropriately touched me", or that it's very black and white and there are witnesses that it happened. It can happen on various bases, and even down to intruding into a person's private space, pestering them, stalking, all those sorts of things that we hear about and hope that never happen.

But it's just keeping our eyes open to exactly . . . and Claire's given a really good description there of what is sexual harassment in the workplace, but I think you have to think of it across all of the ways that it can happen.

Christine:  Yeah. Brilliant. Thanks, Seamus. So we're just going to cue up Claire's next video. If both of us, Seamus, just make sure we mute our mics. It is supposed to happen automatically, but just in case it doesn't, have a wee check because it might be a bit of feedback there.

So that's the video ready to roll. Maria, ready when you are then.

Claire:  So I'm now going to talk about possible future legislative changes. The law in this area is constantly evolving and employers might like to anticipate some likely changes in their approaches to combatting sexual harassment by looking at the Worker Protection Act in GB.

The Worker Protection (Amendment of Equality Act 2010) is due to come into effect in late 2024. It originated as a private member's bill and will give employers enhanced duties to prevent sexual harassment in the workplace.

Note that this does not cover Northern Ireland, and whilst there's no word of anything similar here in the short term, there are useful takeaways for employers to implement if they wish to take a proactive approach.

The Act creates a duty on employers to take reasonable steps to prevent sexual harassment of their employees in the workplace. And reasonable steps include having an equal opportunities policy or sexual harassment policy. The organisation is also expected to take steps to implement the policies. There's the expectation of frequent training on preventing and responding to sexual harassment in the workplace.

And if a complaint should be raised, a prompt investigation must take place. And if required, disciplinary action should be carried out.

Any harassment complaints should be taken seriously, and simply having policies and training in place will not be enough. Policies should be continuously reviewed and updated.

And under the Act, GB Tribunals will have the party increase compensation by up to 25% if it finds that an employer has breached the duty.

Many of the lobbyists would've liked the Worker Protection Act to go further and considered it to be quite watered down. However, the sentiment seems to be that it's worth having and a step in the right direction.

So again, whilst this Act applies to Great Britain and not Northern Ireland, it is helpful for employers here to start thinking about how they could take positive action to prevent sexual harassment in their workplaces.

Another development, whilst not legislative, is the increasing popularity of the active bystander approach. So what is an active bystander in the workplace? It means actively observing and responding to situations where someone may be experiencing discrimination, harassment, or harm. And it involves taking steps to prevent or address incidents and promote a respectful, safe, and inclusive culture.

There are many different types of active bystander programmes which have been applied right across various sectors, including education, sport, police, military, youth, and community sectors.

And there is strong evidence that active bystanders programmes increase participants' likelihood of intervening and challenging harmful behaviours, and that they can help shift attitudes and cultural norms.

They've been shown to be effective across diversity characteristics in addressing the likes of sexual harassment, sexism, racism, homophobia, transphobia, and ableism. So it is great to see the growth of the active bystander approach and the stand-up-speak-out ethos.

You can find lots about it online and there are various trainers who specialise in it. Jackson Katz has a great TED Talk on this.

However, it is important to emphasise here that bystander training is just one mechanism to deal with workplace sexual harassment, and the responsibility for eliminating the problem from the workplace rests with the employer rather than the individual.

In the next segment, I'll address the actions that employers can take to promote a safe workplace from sexual harassment. Back to Christine and Seamus. Thank you.

Christine:  Great. Thank you very much for that, Claire. Claire mentioned active bystander and a TED talk, so Maria is going to drop into the chat a wee link to that TED Talk. It's very worthwhile. Do have a watch.

And I think the whole active bystander thing is a really interesting development, isn't it, Seamus? What are your thoughts on it?

Seamus:  Yeah, absolutely. I mean, you think you can see, when you look at the case law, what the developments are here and how the onus has just increased on the employer.

If we go back to that case, the Allay case back in 2020 . . . now this wasn't a sexual harassment case. This was a discrimination case that had taken place. But this was the classic circumstances of where they had a policy in place, they had training in place as well, but the Employment Appeal Tribunal in England was very critical of the fact that they had said the training had gone stale, that it wasn't sufficient to have the training . . .

And Claire will talk about in the next video in relation to sort of what the expectations are now on employers to deal with sexual harassment.

But the active bystander, I suppose, again, comes down to the culture of your organisation, that you have people in the organisation that are going to witness things and speak up about it, not just shy away from them.

I was looking at some of our sort of more recent case law. A lot of these sorts of cases are unreported because they are Equality Commission back cases that have resolved, so we get to learn of those cases through the Equality Commission.

But there's a case of Shirley Lyons v Starplan. This was a 2021 case. And this was where an employee had attended a Christmas dinner back in 2017. She was the only female in her place of work. Some of the others had gone out earlier in the day. She went to a restaurant to meet them. And I think by the time she got there, there were comments that the men's behaviour became wilder and they were more disagreeable.

One colleague made comments about her chest and her cleavage, came from behind and hugged her, which wasn't asked for, wasn't wanted, and then also suggested that they might have an affair and touched her bottom.

Just to give an aspect of where a tribunal might come in relation to this, she reported the matter on 20 December 2017 to her line manager. She then lodged a formal grievance on 27 December, and on 6 February received her outcome report where some of her allegations were upheld and others were dismissed.

On 8 March, she reported further allegations to her employer to say that her colleagues were ignoring her or excluding her. They had threatened her, intimidating language, abusive behaviour, and one of them had said to her that they were going to take her down.

She resigned from her employment in April '18. The tribunal decision then was in 2021, and she was awarded just shy of £19,000.

And those additional matters that happened in March . . . So we had the Christmas dinner at December. The further matters that she alleged in March were deemed to be further acts of harassment that had taken place.

You can see there potentially where issues would arise with the tribunal whereby a complaint is made, it's not taken seriously enough, it's not acted upon urgently enough, there's a window of time that's permitted, and there's a culture within the organisation that permits further acts of harassment to take place after such serious events had already taken place in the first place. So you can see where that is headed.

There's another case, it's an anonymised case, which is really interesting. The Equality Commission reported this again back in 2021, where a female was slapped . . . there was a meeting, and she was slapped on the bottom with a ruler by a male manager.

There was also another manager present at the meeting and she turned to the other manager and said, "Is that allowed?" And they laughed it off and joked about it. And then when others joined the meeting, they told them about it on top of that, as well.

She raised a grievance. There was criticism around the fact that it took 10 days for the employer to acknowledge the grievance, and it took another five weeks of investigation to get a report back.

The case upheld the grievance, but it alleged that what the claimant said were untrue and disparaging comments about her, and she appealed that decision. And unbelievably, then, in the appeal, the employer made further allegations against the claimant and said that she dressed inappropriately, that she behaved provocatively in her manner, which she denied. She considered that a further attack on her character and, again, further acts of harassment that were taking place. And that case settled for £90,000.

So when you were talking about the active bystander aspect of it, you have these cases where the employer . . . not only is there vicarious liability of its employees, but then there are actions by the employer to deepen and make the situation even worse than what it was.

There's also that 2023 case of Forose v Geraghty. And this was the 15-year-old schoolgirl that worked in a sweet shop in Armagh. Fifteen years of age. The perpetrator was 40 years her senior. Reported the matters to the police. There was criminality. He did admit it. But there was a long list of explicit sort of sexual verbal assaults, physical behaviour, inappropriate touching, smacking. And the award in total in relation . . . There was a Court of Appeal challenge and stuff in relation to it, but you were hitting around £55,000 in relation to it.

And the bigger case on it was the Bronagh Murray v the MoD case. That's the 2022 case. Again, other issues as regards religious discrimination, but the perpetrator described the claimant as a "big cougar" and ultimately she got £70,000 on an injury to feelings and over £500,000 in relation to future loss, including pension loss.

So you can see the significance of these claims that are taken and the risks that are there for the employer.

Christine:  Yeah. And it's about the reaction to . . . You can put all your policies in place in your training, but sometimes people are people and they do things that are wrong. So your reaction needs to be unemotional and, "Let's deal with this in the right way". Brilliant.

I'm just mindful of the time. Seamus. I'm going to cue up Claire's next and final video. Maria is working in the background there. If she can get that sorted out for us, we should see that in a few minutes hopefully, all being well. It's on its way. Brilliant. Maria, if you want to click start on that.

Claire: Hello again. I'm now going to cover best practice in the workplace. Our sexual harassment guidance is accessible and practical, and Clare Moore and I have written it with organisations of any size and resourcing in mind.

We've taken an inclusive approach by consulting diverse staff groups within our respective organisations. And I consulted our women's network and LGBTQIA and allies network in particular. It gives that helpful insight and authenticity to the guidance.

So the first step is culture. It's really important to create an inclusive workplace culture that minimises the risk of sexual harassment. Employers can carry out an audit to understand the extent of the problem by examining data such as surveys, grievances, exit interviews, and tribunal complaints, which may highlight concerns or trends. And it's very important to investigate and take action on any emerging concerns or red flags.

The next step is policy. Employers should implement a clear, comprehensive, and informed sexual harassment policy designed in conjunction with trade unions and employee voice groups.

Prohibitive behaviours should be defined and the seriousness of the offences should be emphasised, with the reporting process clearly explained. The employer should make sure that the policy is regularly reviewed and clearly communicated to staff and third parties. This demonstrates a commitment to safety, respect, and zero tolerance approach to sexual harassment.

We particularly recommend having a standalone policy because there's often a power imbalance where sexual harassment takes place, and it will give options such as making the complaint to HR rather than a line manager who may actually be the perpetrator.

And I should mention that we at the Agency are currently working to implement our own sexual harassment policy to mirror that in the guidance. It's very important to us that we are practising what we preach and being authentic.

The next step is reporting systems. So employers should have clear, confidential reporting mechanisms in place where reporting inappropriate behaviour is encouraged, and where employees that make such a complaint are taken seriously and supported. So encourage a stand-up-speak-out ethos.

Training is also key. The policy should be supported by sexual harassment training right from induction. All staff should receive regular training that is tailored towards the nature of the employer, the target audience, and the employer's policy. And managers should receive training on maintaining appropriate standards of behaviour in the workplace with procedures to follow how to support employees, and also training on maintaining confidentiality.

As we discussed earlier, active bystander training can also be beneficial in creating healthier organisational culture, which all staff are expected to contribute to.

Risk areas are another important aspect. Be mindful of work environments in the organisation where sexual harassment might be more likely to occur, whether the workplace culture enables sexual harassment, and if there are any persistent gender inequalities or pervasive sexist norms.

Whilst it's not about stifling healthy banter, it's really essential to preserve dignity and respect. So think about organisational demographics, possible power imbalances such as inequalities between men and women, senior and junior staff, staff on temporary or agency contracts, or where an employee is customer facing or working in isolated locations. Also consider that some workplaces have historical cultures, hierarchical structures, or even how they socialise can have higher risk factors.

Clear communication from the top down is essential, with leaders at all levels bringing policies and procedures alive and authentically communicating commitment to gender equality and zero tolerance approach to sexual harassment.

It's important to have visibility of these statements through team meetings, employee handbooks, and integrated into the appraisal process by recognising inclusive behaviours. And it's essential to create the safe spaces to enable employees to speak up where there are positive relationships underpinned by open collaborative management styles, good team-working, dignity, and respect.

Employers should also consider having nominated workplace champions, dignity at work advisers, harassment contact officers, all of these with clear objectives to monitor sexual harassment issues and offer appropriate support.

And finally, review, review, review. Organisations should be monitoring effectiveness of workplace policies and practices, and consider whether the sex discrimination and sexual harassment strategies are actually working.

Also consider quantitative and qualitative data from confidential staff, pulse EDI-type surveys, staff engagement groups as well, to confirm whether the policies and strategies are perceived by staff to be equitable and effective.

It's very important that organisations have effective voice mechanisms to build trust and so that staff feel heard. Organisations should be willing to reflect, learn, and improve continuously.

So that's the summary of tips on building a good workplace practice and culture to minimise the risk of sexual harassment.

In our guidance, we've included a template policy that can be adapted for organisations of any size and resources, and we're very hopeful that this will encourage organisations to build inclusive and equitable workplaces where people can thrive and feel safe, respected, and valued.

You can find the guidance on our website along with other publications, which include workplace culture.

I hope that this has been helpful and that you now have some practical takeaways that you can implement in your areas of influence to eliminate sexual harassment in the workplace.

Thanks very much for listening. Back to Christine and Seamus.

Christine:  Thanks very much for that. So it's a really good sum-up, isn't it, Seamus, of what organisations could be doing now?

Seamus:  Yeah. Excellent. And I think that big point of review, review, review . . . particularly if the poll was telling us that there are maybe policies and a procedure there, but no training has been provided, so now might be the time to get that done and push on with it.

I think the tips there from Claire in relation to that about the culture and the organisation and it running from the top to the bottom are really important and good takeaways.

Christine:  Brilliant. Well, Seamus, believe it or not, we've reached the end of our time slot.

Seamus:  Too quickly.

Christine:  So I just wanted to do a wee bit of a summing up.

So my key takeaways from today would be it's important to note an employer may be liable for exposing employees to a harassing environment and failing to take reasonable steps to prevent it. So it's a moral obligation, but it also makes sense if you want to stay out of tribunal.

Secondly, the impact of the behaviour on the victim-survivor outweighs the intent of the perpetrator. So you really must bear this in mind. That is really highlighted in the guidance, and it's really worth a read, as I said before.

Thirdly, a good policy and robust up-to-date training is a must for all organisations to safeguard themselves.

On that note, Legal-Island does have some eLearning. Let us assist you with that. So we've just launched the eLearning dedicated to teaching your staff best practice for preventing, spotting, and dealing with harassment and sexual harassment in the workplace. Details are on the screen now. More to follow in the post-webinar email. You'll be invited to avail of a free demo, so do take that up. We think you'll love the course.

You may or may not know that Seamus and I are also a podcast. You can get up to date with Employment Law at 11 wherever you get your podcasts. We're on Spotify, Apple, and Amazon Music.

And if you'd like to give us a follow on LinkedIn, we'd be very grateful for that as well. You can find me, Seamus, and indeed Claire on LinkedIn. Seamus and I would be particularly grateful to hear any questions you have for upcoming webinars. We always love to hear from you on that, so please do drop us a line.

Thank you all very much for listening. Have a lovely long weekend. If you're doing the marathon, good luck to you all. Enjoy. You can do it. You've put the practice in. You can do it. But thank you very much for listening, and we'll see you all again next month. Thanks very much.

 

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This article is correct at 02/05/2024
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.

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