Almost a third of people have experienced sexually inappropriate behaviour at work, but only half have felt confident enough to report it. Those who did not report an incident said they felt they wouldn’t be believed or taken seriously, while some thought they would be blamed.
These are the results of a survey by The Barrister Group which is reported by Personnel Today. The poll found that 29% of workers had experienced sexually inappropriate behaviour, split between 31% of women and 26% of men. More than two-thirds (69%) said the behaviour came from someone more senior. Almost half (48%) did not report the matter and of those who did, many said they felt awkward, isolated, were accused of overreacting and, in 12% of cases, forced to find another job. Thirty-four percent of employees felt their employer was complicit and happy to “look the other way,” and just under a quarter (23%) said their workplace was misogynistic.
Employment barrister Dr Anna Loufti from The Barrister Group said the findings were “hugely disappointing,” particularly in the current climate. She says:
“There is obviously a distinction between what is unlawful and what is inappropriate, but both are unacceptable in the workplace,” she added. “Employers have a legal duty of care and employees have a right to expect that they will not be made to feel uncomfortable, intimidated or violated in the course of their work.” She goes on: “There needs to be a culture of openness and transparency, where employees feel empowered to report inappropriate behaviour and are confident that when they do they will be supported and the necessary action will be taken.”
A bill designed to protect employees against harassment and require employers to operate a tighter duty of care in terms of preventing sexual harassment is currently going through parliament and is at its final stages before receiving Royal Assent – that’s the Worker Protection (Amendment of Equality Act 2010) Bill which we’ve been tracking in recent months. Over the summer the House of Lords made two key changes to it after persistent lobbying by business groups. The first saw the removal of the proposed third-party harassment provisions. The second was a watering down of the duty on employers to prevent sexual harassment over concerns that the original duty was too onerous, as it would have given rise to an “almost infinite” amount of steps for an employer to take. So, originally the bill required employers to take “all reasonable steps” to prevent sexual harassment of employees in the workplace. The word “all” has now been removed, requiring employers to simply take “reasonable steps.”
Notwithstanding that change, the bill is still important and employers will need to take the new duty seriously and do what they reasonably can to protect its employees and tackle sexual harassment in the workplace. One aspect of the new positive duty to prevent harassment will undoubtedly be around staff training with a greater focus on employers rolling out training programmes on a much more proactive basis. So, let’s hear more about that. Trish Embley is our Head of Client Training, and she joined me by video link from Birmingham to discuss that. I started by asking Trish what she makes of the bill:
Trish Embley: “To me it is just building on what I would say is the existing direction of travel in terms of what employers are obliged to do with harassment in the workplace and particularly anti-harassment training. So, we had not so long ago and EAT decision, Allay Limited v Gehlen, that basically said you can’t take a ‘tick box’ approach to preventing harassment in your workplace. I think they put it quite nicely in that judgement where they said it is not good enough to get your employees together and say, ‘come on everyone, don’t harass each other, not back to work’. So, when we look at this term ‘prevent’ it has got to be outcome focused. So, I think many employers are looking at anti-harassment training and they might, for example, produce 15 minutes of e-learning for their employees. Now the question I would ask there is whether that is actually going to change culture and outcomes. I think it is a great starting point, I think you can get across some of the complex issues that have to be considered around where is the line drawn with banter, what is the relevance of intent, however, I think we are going to have to take that to the next stage and by that, I mean discussing things like harassment in team meetings or workshops or on-site gatherings and meetings because there are a lot of complex issues in harassment. There is that balance with not wanting to work in a sterile work environment and many of our clients, in their values, will talk about bringing your whole selves to work and how work should be a fun place, so it is really, I think, going that next stage with prevention in terms of a deeper dive into training around behaviours, what you can do, what the outcome of any action might be and particularly, I think, offering those who are victims of harassment a lot of comfort about why this will not be career limiting, this isn’t a negative thing for you to do, it’s something that the organisation want people to speak up on and they are encouraging people to speak up, and demonstrating that, how they are creating that culture.”
Joe Glavina: “Can I ask you about reputation, Trish? Previously harassment training has been used as evidence to support an employer’s ‘reasonable steps’ defence in the tribunal. Going forward, when this new duty comes in, employers will be at risk of being ‘called out’ by anyone, potentially, who thinks they are failing in their duty. Do you agree?”
Trish Embley: “Yes, absolutely. We‘ve seen over the years that reputation and keeping to ‘brand values’ have overtaken, I would say, employers’ concerns about litigation. So, again with this proactive duty becoming this sort of stand-alone mandatory duty it will, I think, raise the profile of the importance of employers actually taking positive steps in the workplace to change the culture and to combat harassment. I think as that awareness is raised more people will be prepared, whether that be through social media or the broader media itself, to speak up and say look my employer isn’t complying with the statutory duty and even if they don’t bring tribunal claims I think that in itself will be a driver for employers to say look this has got to become a real priority now for us.”
If you would like further details about the face-to-face harassment training Trish mentioned, or the two harassment e-learning courses we run for managers and employees, please do get it touch. Trish’s details are there on the screen for you.
