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Tackling Workplace Harassment

5th Dec 2017
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It is hardly surprising that with so many news stories reporting workplace harassment and sexual misconduct, employers are revisiting how they tackle these issues in their own workplace. Here are five steps to consider in light of the controversial allegations currently circulating around historical incidents, abuse of power and a culture of silence.

Step 1: Check your policies are fit for purpose

If you have not yet considered this, now is definitely the time to ensure that your policies and processes are in place to respond to any complaint of harassment and any negative publicity that may arise as a result.

These press reports should act as a trigger not only to ensure that your equal opportunities at work policy is fit for purpose and accessible to staff, but also that there are other suitable policies in place, particularly in relation to social media.

Step 2: Do you want to issue a statement?

While there is no requirement to do so, employers may want to tackle this issue head on by making a positive statement to staff from a senior figure. This would refer to the press reports and explain that the intention is to create a workplace free from harassment and signpost a number of internal policies and support available to employees if they feel they have not been treated appropriately. The statement might also cover points that everyone has a responsibility to behave appropriately and professionally in the workplace, with potentially some practical examples. This approach has the advantage of encouraging internal resolution rather than speaking to a newspaper or making comments online about a work colleague’s indiscretions.

Step 3: Speak to your people managers

Managers are in the front line and it is part of their job to ensure that appropriate workplace conversations take place. Managers should:

•establish a culture that employees should contribute their views and feedback is welcomed rather than being told what to do in a hierarchical way;

•communicate that they will challenge any inappropriate behaviour, and intervene where they hear inappropriate language or behaviour; it should be clear that employees should not discriminatory views in the workplace;

•be able to identify bullying and harassment when it arises and deal appropriately with it, including taking appropriate disciplinary action; and

•be supportive when individuals come forward and respond to allegations seriously. Taking this approach is part of challenging the culture of silence that has been prevalent in the recent news stories.

Step 4: Is additional training required?

If it is apparent from conversations with managers that there is a lack of understanding regarding bullying and harassment then managers should be invited to attend training. Organisations should support their managers to give them the confidence to intervene, but also to ensure that the correct approach to creating an inclusive culture is adopted.

Step 5: If required, respond to historical allegations

One of the features of the stories in the media is the issue of historical allegations of harassment. Employers cannot simply ignore complaints because they took place some time ago or if the alleged harasser no longer works for the organisation. Although it will obviously be more difficult to investigate historical issues in terms of witnesses remaining in employment and their recollection of events, that is not a barrier from employers investigating this, or supporting an employee.

Employees making historical allegations should be asked to set out their complaint in the same way as any other formal complaint under a relevant policy and set out specific times, issues and witnesses. Any steps taken by the employer must bear in mind the sensitivities of the situation for all involved (including the alleged perpetrator) and to the extent further steps are appropriate, employers must ensure that they act fairly.

Reasonable steps defence

All of these steps will assist an employer should a tribunal claim be raised. An employer may avoid liability for the actions of the harasser because they took all steps reasonably practicable to avoid the harassment. While this defence will involve a range of actions, the fact that the employer has also issued a statement condemning this behaviour obviously bolsters this defence.

Sarah Ozanne, is an employment lawyer with CMS, and Valerie Dougan is a Professional Support Lawyer with CMS

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