Sexual harassment in the workplace remains a pervasive issue, with far-reaching consequences for both victims and employers. On 26 October 2024, a new statutory duty was introduced, requiring employers to take reasonable steps to prevent sexual harassment at work. This ‘preventative duty’ emphasises the importance of proactive measures to create a safe and inclusive workplace. Employers are now legally obligated to implement clear policies, provide regular training, and establish confidential reporting mechanisms to prevent harassment before it occurs.

The recent Bill to amend the Health and Safety at Work etc. Act 1974 further strengthens the legal framework for preventing workplace harassment. Should this Bill be enacted, it will require employers to take proactive measures to prevent violence and harassment in the workplace, provide specific protections for women and girls, and ensure the Health and Safety Executive publishes a Health and Safety Framework on violence and harassment, including violence against women and girls.

These are all measures that require or will require employers to take reasonable steps to prevent harassment and ensure a safe work environment. However, while prevention is crucial, it is not enough on its own. Prevention helps create a safe and respectful workplace, reduces incidents, and builds trust among employees. But the issue of sexual harassment will not be eliminated simply by prevention. Investigating complaints thoroughly and punishing perpetrators as needed are equally important to address the problem effectively.

Investigating Sexual Harassment Allegations

A thorough and fair internal investigation is crucial in addressing sexual harassment complaints effectively. It not only helps resolve the issue but also demonstrates the employer’s commitment to maintaining a safe and respectful workplace. Proper handling of complaints can prevent the need for litigation or settlement agreements and can encourage employees to remain in their positions.

Failing to investigate complaints thoroughly can have serious consequences. It may breach the implied duty of trust and confidence between employer and employee, potentially leading to claims of constructive unfair dismissal. Employers may also face tribunal proceedings and be held vicariously liable for the actions of the harasser if they cannot prove that all reasonable steps were taken to prevent such behaviour. Additionally, not following the Acas Code of Practice on Disciplinary and Grievance Procedures can result in increased compensation awards for the employee.

When a complaint is upheld and the perpetrator is appropriately disciplined, the likelihood of the victim resigning or pursuing legal action decreases. Conversely, if a complaint is not upheld, the employer must show that a reasonable investigation was conducted and a fair conclusion was reached. This process can also highlight areas for improvement in workplace policies and procedures, reducing the chances of similar issues arising in the future.

Investigations should proceed regardless of settlement negotiations and ideally before such discussions begin. By taking these measures, employers can create a respectful and safe work environment, reduce the risk of legal action, and maintain a positive reputation.

Punishing Perpetrators: Ensuring Accountability in the Workplace

Effectively addressing sexual harassment in the workplace involves not only conducting thorough investigations but also implementing appropriate disciplinary measures against those responsible. Accountability is key to maintaining a safe and respectful work environment. Failure to adequately punish perpetrators can signal that harassment is tolerated, potentially leading to a toxic workplace culture and more incidents of harassment.

Taking proper disciplinary actions against perpetrators is crucial for several reasons. Firstly, it discourages others from engaging in similar behaviour by reinforcing that harassment will not be tolerated and that there are serious consequences. Secondly, holding perpetrators accountable validates victims’ experiences and shows that the employer takes their complaints seriously. Thirdly, properly addressing harassment complaints helps maintain trust between employees and management, demonstrating the employer’s commitment to a safe and respectful workplace. Lastly, failing to take appropriate disciplinary actions can lead to legal repercussions, with employers potentially facing claims for not adequately addressing harassment.

Accusations of sexual harassment can significantly impact the accused. Employers should handle such cases sensitively, ensuring no presumption of guilt. A consistent approach should be taken in all complaints of sexual harassment. The accused should be interviewed early in the investigation and given the opportunity to present their side of the story. They should be provided with sufficient information about the allegations to fully respond. The investigation should be kept as confidential as possible, while still gathering necessary evidence from other witnesses.

Employers should carefully consider whether suspension is necessary during the investigation. Suspension should be justified and not a knee-jerk reaction. If there is sufficient evidence to take disciplinary action, a thorough disciplinary process should be followed. Employers should consider the seriousness of the accusations and the potential impact on the employee’s future career.

Examples Highlighting the Importance of Proper Handling and Accountability

The recent EEOC case in the United States against a cellular phone retailer highlights the importance of taking immediate and effective action. The company failed to act on reports of harassment, including sexual assault, and allowed the harasser to continue working with the victim. This inaction led to the victim’s termination and mental distress. The company eventually settled for $107,916 and agreed to implement training and strengthen anti-discrimination policies. This case underscores the severe consequences of failing to address harassment complaints promptly and effectively. The employer’s failure to take any remedial action, even after the victim filed a criminal complaint, and the subsequent termination of the victim, exemplify the critical need for proper investigation and action.

In the case of KJ v British Council ET/3200569/2022, the tribunal found that delays in investigating and responding to harassment complaints, as well as inadequate findings by the employer’s committee, breached the duty of trust and confidence. The tribunal also criticised the employer’s decision not to suspend the alleged perpetrator, despite serious allegations, and deemed the solution of having a colleague chaperone the victim as inadequate.

Conclusion 

While the recent legislative changes in the UK emphasise the importance of preventing sexual harassment in the workplace, prevention alone is not enough. A significant problem with these reforms is that they primarily focus on making companies responsible, but not necessarily individuals. They often lack ‘teeth’ when it comes to actually punishing the people who commit the harassment. It is as if the reforms are trying to fix things upstream at the company level, while the actual harassment is happening downstream with individuals. This gap can undermine the effectiveness of the reforms, as the root cause – individual behaviour – is not being adequately addressed.

Employers must in fact ensure thorough investigations and appropriate disciplinary actions to address harassment effectively. The examples of the EEOC case and KJ v British Council highlight the severe consequences of failing to act promptly and decisively.

A proactive approach to preventing harassment, combined with a robust system for investigating complaints and holding perpetrators accountable, is essential. This not only protects employees but also helps maintain a positive and respectful work environment. Ensuring accountability and supporting victims are critical steps in eradicating workplace harassment and fostering a culture of respect and safety.