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I was only having a laugh…

The TUC reported last year that more than half of the women it surveyed had been sexually harassed at work, with most admitting they hadn’t reported the incident. Depressingly, the situation seems to have remained the same one year on, if the #metoo campaign and Westminster allegations are anything to go by.

However, mitigating explanations from the perpetrator such as ‘I was only having a laugh’ or ‘they’re being too sensitive’ just won’t cut it. Hannah King, employment lawyer at B P Collins, explains.

Although a remark might be meant as a compliment or a laugh, the law is not concerned whether it was a one-off incident or the intent of the perpetrator. Instead it focuses on whether the behaviour created a hostile, intimidating or offensive environment for the victim.  A Tribunal will consider if it is reasonable for the conduct to have had the effect that the victim has complained about, in order to ascertain if he or she is being hypersensitive.  But ultimately it is the way the victim has been made to feel, is paramount. 

It is extremely important to remember this when someone makes a remark or action that might arguably fall into the ‘is that really sexual harassment?’ category - such as a hand on the shoulder or a compliment about how someone looks. If the recipient feels uncomfortable, then they have the right to raise it with the ‘harasser’ or their employer.

It is therefore vital that an employer should do everything they can to ensure that they have clearly set out their expectations of their employees’ behaviour and conduct in the workplace.  This can be done by ensuring that there is a sound grounding to prevent an incident with a comprehensive diversity and equality policy and anti-bullying and harassment policy. There should also be a clear and accessible grievance procedure for those who need to raise an issue.  These policies should include an explanation about what behaviours and comments are not acceptable.   However, as is often the case, employees do not necessarily take the time to review these internal policies; therefore, it is extremely advisable to ensure that these policies are supported by full and comprehensive training programmes for all staff.

To reassure the many people that don’t report harassment, it is absolutely essential an employee can trust their management to handle concerns sympathetically. Complete confidentiality might not always be an option, but employees should be made aware in their company’s policy how an investigation is likely to proceed, should they report an incident.

Employers should also offer support to all individuals involved and encourage an environment of openness as it could help to diffuse the situation. Depending on the nature and severity of the allegations, mediation can be a good way to mend the relationship between two members of staff, with the offer of additional training for the perpetrator and counselling for those finding the situation difficult.  If these steps are offered and taken up early on, then they can help to salvage the working relationship before matters deteriorate further. 

Otherwise if an incident is not dealt with sensitively, the reputation of a company could be severely damaged, morale could take a nosedive, absences could soar, highly-skilled people could leave and there could be huge cost to the company if an aggrieved individual decides to sue. They could have a good case against their employer, particularly if there was no equality and diversity policy and training in the first place. It is therefore best to prevent harassment from the outset by implementing those key policies mentioned above and undertaking the training, which should be delivered to everyone from the top to bottom of the organisation. It is not just the responsibility of HR managers.  This will also potentially give employers a defence to a tribunal claim for harassment if they can show they took all reasonable steps to prevent it. 

With the latest furor, there have been calls for employment laws to be reviewed again, which may be difficult for employers to keep on top of. For example, will the time it takes to report sexual harassment cases be extended beyond three months – leading to more historical claims? Will third party harassment claims make a comeback? B P Collins can ensure that your policies and training are current, comprehensible and abide with the law.

If you like to learn more about any of the issues discussed in this article, Hannah King, employment lawyer at B P Collins is holding a workshop on sexual harassment in the workplace on:

Tuesday 5 December 2017  |  8:00am – 10:00am 

Location: B P Collins LLP, 32-38 Station Road, Gerrards Cross, SL9 8EL

Cost: £50 

To sign up for this workshop, please email steve.perry@bpcollins.co.uk or call 01753 279006.