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May 14, 2019

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Sexual harassment

Sexual harassment: How employers can protect themselves against claims

Following a series of high-profile sexual harassment cases in the workplace, Emma Bullen from MHR provides some practical advice on how employers can protect themselves from sexual harassment claims.

harassment claimsOver half of women have been sexually harassed at work, according to a BBC survey carried out in 2017. The data revealed that 53% of women and 20% of men have experienced harassment at work with one in ten women reporting unwanted sexual touching. This is damming evidence that issue of workplace harassment is widespread and the view that “this can’t be happening in my organisation”, would be wide of the mark.

The law around harassment hasn’t changed, and it is still contained within the Equality Act 2010. The biggest difference in recent years, however, is that more and more victims of sexual harassment now feel more comfortable speaking up about their experiences. Something which has been highlighted by the #metoo movement.

When it comes to liability, many people do not realise that it is possible for the harasser, the manager, and the company to all be individually liable for harassment which occurs in the workplace. This includes any compensation payments which, in some cases, may be spread evenly between all three parties. For sexual harassment the amount can range from approximately £900 to £42,000. However, there is no maximum limit on the damages that can be awarded as it is calculated in the same way as a claim for discrimination, which is unlimited.

An employer becomes liable for an employee’s acts of discrimination during the course of employment if the acts occur at work, or with a sufficiently close connection to work. The employer is not relieved of liability if the act in question was unauthorised or expressly forbidden. If it is reasonable for the employer to have known that harassment was happening and did not take the appropriate action to address the issue, then all involved parties could become liable for the harassment claim.

What constitutes sexual harassment at work?

How organisations protect themselves against these claims?

By following some crucial steps employers can establish ‘Statutory Defence’ against harassment claims, provided that they are in place before any acts of harassment have occurred. If an organisation passes the test to satisfy the courts that they have followed these steps, they will be completely free of liability.

To fulfil the requirements:

  • The organisation must have an effective policy in place to cover harassment. However, the mere existence of a policy is not sufficient. It must be reviewed regularly and outline what behaviour is and is not acceptable.
  • Employees must be aware of the policy or policies that encompass harassment and where they can view this information.
  • People managers must be trained on how to recognise unacceptable behaviour, and how to correctly deal with harassment within their teams. This training should be refreshed on a regular basis and must capture all new managers when they begin their management role.
  • Any complaints of sexual harassment must be dealt with effectively by thoroughly investigating the incident and taking the appropriate disciplinary action.

As always, organisations should be able to evidence that these actions have been taken. Therefore, according to Emma, it is crucial to keep training records, written communication and notes of any disciplinary related meetings.

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