Managing sexual harassment at work

Kate Hurn at international law firm Bird & Bird explores the practical and personal challenges that senior leaders face when addressing issues of sexual discrimination within the business

Since the #metoo movement, there has been a significant focus on employers’ approach to dealing with sexual harassment in the workplace. Assessing their response to misconduct allegations and tackling the root causes of such behaviour should be on the risk and compliance agenda for all employers. 

Employers have a legal and moral duty to provide a safe workplace and, increasingly, this goes beyond investigating and dealing with allegations of sexual harassment when they arise. Proposed new legislation in the UK (which is currently progressing through Parliament) will put employers under a positive duty to take all reasonable steps to prevent sexual harassment and to protect workers from being harassed by third parties.

In addition to the legal, financial and reputational repercussions of employees making sexual harassment claims against their employer and/or colleagues, there is a significant business cost in failing to take proactive steps to deal with such issues.

Businesses in which workers experience sexual harassment are likely to suffer from lower productivity, increased staff turnover, absenteeism and poorer recruitment rates.

Dealing with sexual harassment issues in the workplace is often complex. For international companies, it can be difficult to reconcile global core values with legal processes and cultural expectations at a more local level.

The highly personal nature of the allegations, complex issues around consent and potential power imbalances between victim and perpetrator can make investigations complicated and difficult to navigate. Investigators and decision makers may need to cut through bias around an employee’s value to the business when considering how to investigate and deal with allegations.

It is important that employers take appropriate action in respect of any perpetrators of sexual harassment, regardless of how profitable they may be to the company. In the face of these challenges, internal Legal and HR teams often have a key role in acting as guardians of the company’s values, advising on how to implement these in practice and ensuring that matters are investigated fairly and objectively.  

Employees who have been involved in sexual misconduct allegations - whether as victim or perpetrator - may end up leaving the organisation. It is relatively common for a settlement agreement containing confidentiality provisions to be used in such circumstances.

The main purpose of such clauses (which may also be referred to as non-disclosure agreements or NDAs) is often to prevent the parties from disclosing details of the circumstances of the termination of employment and they can be an effective way of minimising reputational damage and allowing the parties to move on.

However, in light of the #metoo movement, a spotlight has been shone on NDAs globally and critics have argued that they have unfairly gagged victims of misconduct whilst protecting perpetrators. There has been no legislative change in the UK yet but there are undoubtedly potentially serious consequences for lawyers and companies if NDAs are not drafted properly or are used in an abusive manner.

It is crucial that NDAs do not interfere with either party’s ability to make reports to regulators or law enforcement agencies, to co-operate with a criminal investigation or prosecution, or to make protected disclosures under whistleblowing legislation.

In cases of sexual misconduct employers may need to consider other appropriate carve outs, such as an obligation to report allegations to the Board or allowing disclosure of information about earlier complaints if further allegations are made against a particular perpetrator.

Whilst a key function of NDAs is to protect corporate reputations, employers should be alive to the risk that inappropriate use of NDAs could have the opposite effect if companies are perceived to be sweeping issues under the carpet. If misconduct allegations have been upheld, employers should therefore give serious thought to the separate issues of how to deal with the perpetrator and keeping track of any patterns of behaviour by individuals or within teams.

To influence change in organisations, employers need to do more than just deal with problematic behaviour when it is reported. Employers need to take a two-pronged approach of making it easier for employees to report sexual harassment, whilst also addressing the underlying attitudes and behaviour leading to such allegations.

In its report Tackling Sexual Harassment in the Workplace, the Fawcett Society has identified five key areas that employers should address to root out sexual harassment at work: culture, policy, training, reporting mechanisms and responding appropriately to allegations when they are made.

Many companies will have existing policies and training on sexual harassment, but employers should review these regularly to ensure that they are as effective as possible. For example, bystander training may be helpful to empower colleagues as allies and role-specific training could help managers be more informed about problematic behaviour and how to deal with it.

Creating a culture in which sexual harassment is actively discouraged, reported and punished will ultimately reduce incidents of problematic behaviour and mitigate the attendant legal risk.

Kate Hurn is a Senior Associate in the International HR Services Group at Bird & Bird

Main image courtesy of iStockPhoto.com