Claims of sexual harassment, be they current or historical, are everywhere at the moment. Regardless of your view on the legitimacy of some of these, what is undeniable is that employers can’t continue to make allowances for the types of conduct that are being reported without risking significant legal exposure.
To assist employers in identifying the behaviours that could give rise to valid discrimination complaints, we’ve produced a series of “myth busters” to help separate fact from fiction, all of which will be published on this website in the next few days.
Of course, if you’re an employer and would like to discuss any of the issues touched on in these posts, please contact one of our HR consultants in confidence and without delay for some initial advice free of charge and without obligation.
Myth: It can’t be harassment where the “victim” has previously engaged in similar sexual “banter” with the alleged harasser.
Fact: Even though the “victim” has previously engaged in “banter” of a sexual nature with the alleged harasser, if he / she has ceased in doing so and made it clear that he / she wants it to stop then it can still constitute harassment…and if you as the employer fail to adequately address a complaint in this regard then the “victim” could well have the basis of a valid legal claim. This is because one aspect of the definition of sexual harassment is that the conduct in question is unwanted. An employer might assume the position that conduct cannot be unwanted if the “victim” has engaged in the same type of conduct previously, but by making it clear that he / she wants such conduct to stop, the complainant will have rendered it unwanted. To avoid such situations arising in the first place, or at least limit liability for the unwanted conduct of individual employees, employers should take preemptive steps such as:
- Establishing a policy which defines harassment, provides examples, confirms zero tolerance, outlines a complaints procedure and refers to the possible outcomes. Clearly communicate the policy to existing staff and new recruits. Review it regularly and update it as necessary.
- Providing regular training to help employees understand what types of behaviour can constitute harassment and managers understand their responsibilities in recognising and dealing with such matters.
- Operating and observe a recognised grievance procedure as a means by which complaints of harassment can be addressed and resolved.
- Investigating all complaints of harassment quickly and effectively, clearly documenting the procedure followed.
- Addressing instances of harassment with the perpetrator and protect the victim from retaliation, clearly documenting the process followed, decisions made and remedial action taken.
Look out for our next post, which will deal with preconceived notions of who engages in harassment.