#MeToo: what should employers do now?

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This year, the Equality and Human Rights Commission (EHRC) published its findings, making several recommendations to both employers and the government on how to deal with sexual harassment in the workplace.

But, as an employer, before you can start tackling sexual harassment, you have to understand how and when it can occur.

What is the meaning of sexual harassment?

Section 26 of the Equality Act 2010 defines sexual harassment as:

engaging in unwanted conduct of a sexual nature, and the conduct has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

This could catch a variety of actions and words, so it’s vital that you have policies in place, and make sure your employees understand and demonstrate acceptable behaviour at work. Remember, you can be liable for your employees’ actions, unless you can show you’ve taken reasonable steps to prevent them. Without clear policies in place, you’d struggle to prove this.

What do employers need to do?

Workplace sexual harassment is in the spotlight at the moment, and watertight policies and procedures are more important than ever. Employees who have experienced sexual harassment often complain of a lack of appropriate reporting procedures or feel that their employers didn’t take complaints seriously. Introducing a new mandatory duty and a statutory code of practice, requiring employers to approach and respond to instances of sexual harassment effectively, is among the EHRC’s recommendations.

The EHRC has also suggested that ACAS should develop specific training for employees, including implementing workplace ‘champions’. But, as an employer, it’s a good idea for you to be proactive, and instigate this yourself. You could also train staff on how to support those who’ve experienced sexual harassment, making sure they’re not blamed, ignored, or victimised.

Statistics have shown that it’s not just employees that are perpetrators of sexual harassment, though – but also customers and clients – so you’ll need to factor that into your policies and procedures, too.

How can I help the individual involved?

The EHRC has recommended several ways that employers can help the individual involved, including increasing the time limits for bringing claims involving sexual harassment from three to six months. Not only would this allow more time to bring claims but, on a human level, time to process and deal with the harassment before taking next steps.

From an employer’s point of view, if the individual’s had time to emotionally digest what’s happened to them, they might be able to articulate it better – giving you a clearer picture.

NDAs

When settling sexual harassment case, employers often insert non-disclosure agreements or confidentiality clauses, effectively preventing the individual from discussing what has happened to them.

Think twice before doing this. It might make the individual feel ashamed and alone, and unable to speak out or discuss their experiences as part of the healing process. The EHRC has recommended that these types of clauses should only be used if the individual insists – so that employers can’t use a power imbalance to pressure or force their employee to sign away their voice.

NDAs shouldn’t be banned completely, though, as some people actively seek to preserve confidentiality, for a variety of reasons. It could be an idea to leave it up to your employee to initiate NDA discussions, following their lead. Some employers will insist on NDAs for other reasons, though, like if they don’t accept they’ve done anything wrong, and the agreement is for commercial purposes, or to preserve other confidential information.  There’s no one size fits all solution, and you’ll have to carefully consider and craft the wording in each situation – balancing the needs of both the business and the individual.

What happens next?

Employers can’t get away with a light touch approach when it comes to sexual harassment. The more it appears in the media, the more pressure there is to take action.

So, look now at your policies and procedures – for both before, and after, a complaint – and make sure you’re equipped to deal with any issues properly. Train your staff, so that there’s no doubt that everyone understands what’s acceptable and what’s not. Encourage an ongoing open and supportive discussion.

Don’t be afraid to think differently either and remember that tackling sexual harassment at the earliest stage – like in schools, colleges, and universities – will improve the way those young people go on to treat one another in the workplace. Try to get involved with educators to explain how damaging sexual harassment can be, and work together to promote good behaviours for now, and the future.