In recent months, The Fawcett Society published a highly detailed report “Tackling sexual harassment in the workplace” with recommendations for employers.
This report, which contains genuinely useful and practical suggestions for all employers (whatever the size of the organisation), has come at a crucial time given the Government’s recent commitment to introducing legislation to impose a positive duty on employers to prevent sexual harassment in the workplace (see our previous briefing note here) as well as the publication of the Home Office’s new strategy outlining the Government’s plan to tackle violence against women and girls (please see here for the Home Office strategy).
The Fawcett Society report (the Report) combines three evidence sources: a literature review of what works to tackle sexual harassment in the workplace, a call for evidence from women who had experienced sexual harassment, with 290 responses (the report contains very powerful direct testimony from women), and a survey of 236 managers.
In this blog we look at the findings and recommendations of the Report but also suggest that HR professionals take the time to read the Report in full so as to understand the full context and findings.
- The Report rightly suggests that sexual harassment is not just aberrant behaviour of a few individuals but is about a culture within certain workplaces whereby every-day behaviour can violate the dignity of (predominately) women* and where such behaviour is too often minimised or trivialised as “banter”;
- It identifies that “at least 40 per cent of women have experienced workplace harassment” and women who are marginalised for other reasons (race or disability for example) face an increased risk;
- The report also highlights the impact of the pandemic: “Escalations and new forms of harassment have also been reported due to working from home: 45 per cent of women in a recent survey reported experiencing harassment online through sexual messages, cyber harassment and sexual calls. Over one in five (23 per cent) women who had been sexually harassed said the harassment increased or escalated since the start of the pandemic while they were working from home.”
- This culture of sexual harassment is upheld by a combination of factors including:
- the way that many employers approach sexual harassment which tends to be reactive (the report goes as far as saying “quietly resolv[ing] incidents after they have happened”);
- taking an individualised response to an institutional problem;
- employees who report harassment facing victimisation and retaliation and then in turn, women recognising this risk, choosing not to report at all thus a vicious cycle where “managers and leaders do not know what is happening in their organisations and policies sit on the shelf unused”.
- The Fawcett Society say this is why we need to rethink how we approach sexual harassment.
An important survey showing that sexual harassment is under-reported is also highlighted in the Report:
“A survey of 1,533 workers conducted by YouGov for the TUC found that 79 per cent did not report unwanted sexual behaviour to their employer. Reasons the reporting rate is so low can be summarized into six categories:
- the employer or employee minimises the seriousness of the experience;
- the employee lacks faith in their employer’s response;
- the employee holds little power in the workplace;
- the employee fears negative personal consequences;
- the employee does not want to reinforce stereotypes about women from their race or ethnicity; and;
- the employee faces structural and procedural limitations.”
Key requirements to prevent harassment
The report identifies five key requirements to create a workplace that does not tolerate sexual harassment:
Each of these five areas are interconnected. Employers should note that the Fawcett Society intends to publish a toolkit in the new year building on the work of the report.
1. Culture change
The Report advocates that employers can begin to tackle sexual harassment by engaging in an organisational review and reflecting on their practices. It says that conducting a “climate survey” to identify patterns of behaviour and ideas enables employers to identify the workplace norms and practices that are shaping sexual harassment risks. Doing so also correctly reframes sexual harassment from an individual issue to an organisational issue. Climate surveys and culture reviews are increasingly common tools used by employers for assessing the attitudes, beliefs, feelings and behaviours on the ground and can give employers really powerful insights into their culture as well as being able to pick up any issues that need to be acted on to create a safer culture. They present valuable opportunities to assess whether initiatives that have been put in place to tackle harassment or other forms of unacceptable behaviour are actually having the desired impact in practice.
Turning back to the Report, the Fawcett Society say that two organisational factors: the number and role of women in the organisation and leadership commitment, have been identified in the literature as important predictors of an organisation’s tolerance for sexual harassment and levels of harassment. Studies have conclusively demonstrated that sexual harassment levels are higher in workplaces with more men than women, where the leadership is dominated by men and where the nature of the work is “traditionally” male (such as construction and law being the two examples given in the Report). Therefore, employers should work to improve the inclusion and equality of their workplaces and diversify their workforce, including by promoting women, particularly women of colour, disabled women, and LGBTQ women into senior leadership positions; and ensuring that they can thrive there. In this context, employers may wish to consider the use of the positive action provisions under the Equality Act 2010.
Furthermore in relation to culture, the Report stated that leaders should demonstrate that they take sexual harassment seriously by stating their commitment to eliminating it in the workplace and holding their peers, and themselves, to account. The Report gives guidance on policies and procedures for adopting a “zero-tolerance stance” something we have talked about previously in the context of the UN framework for tackling sexual harassment.
Finally, in relation to culture, employers should also:
- Proactively communicate that any sexual harassment is unacceptable and demonstrate this through consistent actions when incidents occur;
- Employers should address all incidents of sexual harassment, small and large, with seriousness and professionalism, and say that harassing behaviours will not be tolerated; and
- Conduct a climate survey to measure organisational attitudes towards sexual harassment. Employers should anonymously ask their employees about the current status of sexual harassment in the workplace and use findings to identify where action is needed.
Sexual harassment policies set the tone for how seriously the workplace takes sexual harassment. A straightforward and well-known sexual harassment policy is not only useful to employees who have been harassed and managers who are handling reports of harassment, but it can also serve as a clear signal that employers take harassment seriously, contributing to the development of an organisational culture that does not tolerate harassment.
Having a clear and detailed sexual harassment policy that is separate to a general harassment and bullying policy is a foundation for tackling sexual harassment.
The Report states that the following are key components:
|1. Policy statement.|
|2. Definition of sexual harassment.|
|3. Description of who and where the policy applies, including while working from home.|
|4. Guide of how to report sexual harassment.|
|5. Outline of the responsibilities of management and staff who witness sexual harassment or who receive a complaint of sexual harassment.|
|6. Description of the formal grievance or complaint and investigation procedure.|
|7. Description of the possible sanctions for committing sexual harassment and how sanctions will be decided.|
|8. Statement of zero tolerance for victimisation.|
|9. Commitment to reviewing and evaluating the policy.|
It is vital to provide examples of behaviours that constitute sexual harassment because research has found that perceptions vary between people. In addition to the above, we suggest that an anti-sexual harassment policy can also usefully cover the following:
- Explanations of confidentiality and anonymity and in what circumstances those would apply (this will help provide information to employees and manage expectations);
- Provide information and helplines of external agencies who can offer specialist advice and support to anyone who has experienced sexual harassment or anyone who wishes to seek help to change their behaviour. There are specialist organisations that work with men and women in these areas.
Sexual harassment training should be tailored to the organisation using information on where it occurs, the characteristics of who perpetrates sexual harassment and who is targeted (eg seniority level or individual characteristics such as race and ethnicity). In this regard, both data from the Fawcett Society Report, other publicly available data as well as information that becomes available through a culture review or climate survey should help inform the content of training.
Training can include teaching on how to prevent harassment, but it can also include important information on how to report sexual harassment and how to respond to a report. By holding regular sexual harassment training, employers can raise awareness about sexual harassment and demonstrate their commitment to tackling it within their organisation. Training should address behaviour that is unacceptable, not just technically legally actionable. The Report says that bystander intervention training is thought to be beneficial to the workplace for several reasons. It can allow better support to victims, and signal organisational commitment; but a crucial function is that it frames men as allies, rather than simply potential harassers. Bystander training can also help to create a shared understanding of what sexual harassment is and that it is not acceptable in the workplace.
Employers should not expect that training alone can prevent sexual harassment from happening in their workplace. Instead, training should be part of wider culture change. All employees, including new inductees, should be regularly trained in what constitutes sexual harassment, who is targeted and by whom, the harm it can cause, how to report it, and the importance of preventing it, and training should cover intersectional types of sexual harassment.
In addition to training for all employees, managers should also receive training in how to respond to a report of sexual harassment. We would add here that employers should upskill in conducting investigations. Our investigations blog has a range of articles on investigating sexual harassment (see here and here). Employers should evaluate training and quality assure any external speakers that are brought in as well as conducting pre- and post-training surveys to monitor the effectiveness of the training, keeping in mind that positive outcomes (ie a reduction in sexual harassment rates) may only be apparent in the long-term. Employers should adapt training based on employee feedback and suggestions.
4. Reporting sexual harassment
A robust reporting system is one in which employees know how to make a report, feel safe to do so, and are able to select a route that works for them. The existence of multiple secure, well-functioning, and well-known sexual harassment reporting routes can increase reporting rates and contribute to culture change efforts within an organisation.
The Fawcett Society say that there should be more than one person employees can make a report to and that these complaint handlers should be spread throughout levels of management. In small businesses with limited internal options, this may involve offering an independent person or service for employees to turn to.
Allow employees to make an informal or formal report and make them aware of the difference (although note that even if reports are informal, an employer may have to take some action particularly if there is a risk of ongoing harassment or harm to third parties). Each employee who has experienced sexual harassment will have different needs and desire different outcomes. Allowing employees to make an informal report, with the option of making a formal report later, recognises these differences. Employers should make clear what action or outcomes will follow from each type of report. The type of reporting systems on offer to an employee will depend on the resources available to the organisation but can include:
- a phone line,
- a webform or app,
- an independent third-party, and
- an anti-sexual harassment pioneer.
At a minimum, employees should be able to make a report to at least two different people and those people should come from different levels within the organisation. Employers who chose to offer anonymous reporting routes should only do so in conjunction with named reporting routes. Employees should be aware of the limited action that can follow an anonymous report and should be given the option to make a named report at any point afterwards. Employers should encourage all employees who experience or witness sexual harassment to make a report.
5. Employer responses
The Report recommends the following:
- Treat employees who make a report with respect and empathy. This means that managers and employees who receive a report of sexual harassment should listen respectfully and without judgement, recognising that the experience may have been traumatic. They should not try to explain the alleged harasser’s actions or minimise the experience. Instead, they should listen to the employee’s report and thank them for coming forward. Provide information about next steps and ask the employee who made the report what they would like to do. The employee who experienced harassment should be given the choice on how to proceed without influence from their employer (but note that in some cases employers should consider whether they must take some action to prevent for example, ongoing harassment, to report a crime or to protect third parties or perhaps vulnerable groups depending on what the employer’s business is);
- The employer should provide full information about what each choice entails (ie how long the process will take and who will be involved) and what outcomes could result. Employees should be given time to make their decision and be given access to someone who can provide impartial support and advice, such as an anti-sexual harassment pioneers or an independent third-party (again, however, employers need to factor into the matrix of issues to consider, whether there are ongoing and live risks that need to be managed appropriately);
- The Fawcett Society recommend that the employer keeps the report confidential and that only members of staff who absolutely must know about the report should be informed. The employee who made the report, the alleged harasser, and anyone else with knowledge of the report should be made aware that the information must be kept confidential. However, keep in mind that in some industries reports may have to be shared with external agencies such as statutory authorities, regulators or professional associations if even on a redacted basis and should the matter ever proceed to litigation or a data subject access request is made, then the report may ultimately be disclosable under those processes;
- Provide ongoing support to the employee who made a report. Employees who report an experience of sexual harassment should be regularly checked on, by an anti-sexual harassment pioneer if available, or by their manager, to see if they need extra support or if they have experienced any retaliation or victimisation;
- Managers should not be left to handle reports on their own. Managers should be provided with guidance that states how to support the employee who made a report, the processes to follow depending on whether the employee made an informal or formal report, how to handle counterclaims if they arise, how to prevent or address victimisation of employee who made the report, and who to go to if they need support;
- The timeframe for investigations should be set out in the sexual harassment policy. It should be long enough to allow for a proper investigation but kept to a reasonable duration, recognising the stress of the investigation process for all involved. If the timeframe cannot be met, the employer should notify the employees and provide a new deadline;
- Investigate the disclosure thoroughly and fairly.
Workplace sexual harassment is unwanted behaviour of a sexual nature that violates a worker’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. It is the technical name for a range of behaviours affecting workers which are unlawful, including sexual comments or jokes; suggestive looks, staring or leering; intrusive questions about a person’s private or sex life or a person discussing their own sex life; spreading sexual rumours about a person; or sending sexually explicit emails or text messages.
The Fawcett Society report addresses sexual harassment through a gender equality lens and so the main focus is on the sexual harassment of women in the workplace. The report acknowledges the impact that sexual harassment can have on all the people who experience it, but overall, the evidence shows that it is more commonly perpetrated by men, on women.
If you require further information about anything covered in this blog, please contact Maria Strauss or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, November 2021