Claims of 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 our 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’s not sexual harassment if the “victim” doesn’t complain about the alleged conduct.
Fact: If the alleged harasser is the “victim’s” superior, he / she may be concerned about the impact that making a complaint may have on his / her employment in terms of career prospects and even job security. This may lead to the “victim” putting up with the unwanted conduct in order to avoid further conflict. However, that conduct can still constitute harassment and can therefore constitute grounds for a legitimate claim. Furthermore, where the employer becomes aware of the matter (or it can be shown that it ought reasonably to have known about it), a common law duty of care exists towards not only the “victim”, but to other employees who may be affected by the conduct. In that context, the employer must take all reasonable steps to ensure the health, safety and wellbeing of its employees, including protecting them from the conduct concerned. These steps will vary according to the circumstances, but some examples that would have relevance to harassment include:
- Establish 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.
- Provide 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.
- Operate and observe a recognised grievance procedure as a means by which complaints of harassment can be addressed and resolved.
- Investigate all complaints of harassment quickly and effectively, clearly documenting the procedure followed.
- Address instances of harassment with the perpetrator and protect the victim from retaliation, clearly documenting the process followed, decisions made and remedial action taken.