Employers have a duty to protect workers from sexual harassment and a failure to take reasonable steps to do so risks legal liability. Employers can also be vicariously liable for acts of harassment and can even face direct liability where an employer’s response (eg the conduct of an investigation or reaction to an allegation) was such that it, in and of itself, constituted harassment.
This note focuses on two discrete areas:
- sexual harassment in the context of home-working; and
- investigating allegations of harassment: confidentiality and anonymity issues.
The impact of remote working
Working from home, which millions of people in the country are now doing, creates physical distance between colleagues and in some ways reduces the risk of certain types of workplace sexual harassment such as contact sexual offences.
However, remote working can erode formality and blur professional boundaries. For example, professional dress is certainly moving towards the casual end of smart-casual and many of us have now been able to peek inside our colleagues’ homes and may have even met their families, flatmates or pets!
Informal communication channels and the use of social media, where the tone and etiquette are inevitably more informal, are definitely on the rise for eg team WhatsApp groups and Slack channels set up to recreate the “water cooler conversations”.
Although we are not seeing one another in person these developments increase the opportunity for online harassment. The “workplace” may be less defined (for those of us working from home and of course many workers are not) and more intertwined with our personal lives, and the opportunities and context for potentially inappropriate, intrusive and unwelcome conduct have changed.
Harassment as defined in the Equality Act 2010 (s26 (1) & (2)) is when [Person] A engages in unwanted conduct related to a relevant protected characteristic (eg sex or sexual orientation) or conduct of a sexual nature and the conduct has the purpose or effect of violating [Person] B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for [Person] B.
It is useful to remember that the conduct in law is broadly defined and cases have dealt with verbal and written comments, social media postings (which could cover text messages, pictures or GIFs), images and graffiti, as well as physical behaviour. It does not need to be multiple episodes - a single one-off act could be unlawful, eg a single post or comment over Zoom.
When assessing “purpose and effect”, a Tribunal will look at how the worker feels about the conduct and the “other circumstances of the case”. This is wide and would include, for example, where the conduct takes place. Interactions intruding into a worker’s home life and private sphere (even if via work channels) would be given due weight.
Add to this a dispersed workforce with reduced day-to-day contact with managers/supervisors and HR and it is not hard to see how harassing behaviour could occur in the virtual office and go undetected and unreported.
Prior to the #MeToo movement going viral in October 2017, research carried out by the TUC and Everyday Sexism Project found that more than half of women and nearly two thirds of young women aged 18 – 24 had experienced sexual harassment at work. It will be interesting to see how these statistics develop three years on from #MeToo, in the context of the pandemic and remote working, and post developments in the law such as the publication of the EHRC technical guidance on harassment, EHRC and ACAS guidance on NDAs (see previous blogs here and here) and of course the high profile sentencing of Harvey Weinstein and other sexual offenders since #MeToo.
Responding to allegations
Allegations of sexual harassment can be very serious and often deeply personal. Employers must take great care to respond to complaints properly.
- For some top tips for conducting workplace investigations into sexual and racial harassment and problem areas to watch out for see recent briefings from my colleagues, Maria Strauss and Kathleen Heycock, which draw on their experience of working on complex workplace investigations. Please also see guidance by Maria Strauss and Katie Fudakowski on virtual workplace investigations - critical points for businesses.
Confidentiality and anonymity
Requests for anonymity and confidentiality are understandably common where allegations of sexual harassment have been made. People are often embarrassed about the allegations, fearful about their positions and worried about the impact on their careers so they often ask for confidentiality or anonymity. It is important not to conflate these two concepts.
All workplace investigations should be treated as confidential processes (subject to any legal or regulatory obligations to report issues or indeed where the case may warrant a report to a statutory agency if there are immediate risks to anyone’s safety and welfare) and this is especially important when dealing with allegations of sexual harassment. Confidentiality in short means that the identity and facts of the allegation and investigation will be kept to a “need to know basis”.
This means the identity of the complainant and/or supporting witnesses are not revealed to those participating in the process (including the accused). This is much trickier and can have implications for the fairness of the process. ACAS provides some clear guidance – “only in exceptional circumstances where a witness has a genuine fear of reprisals should an investigator agree that a witness statement be anonymised.”
It is important to flag that, under the Sexual Offences Act 2003, where allegations have been made that a sexual offence has been committed, in the vast majority of cases, the person said to be the victim has by law lifetime anonymity as regards any public report of that allegation – this is automatic and unconditional and takes effect even if the police has not been told about it.
Steps to take include:
- Make clear from the very outset of the process what the expectations around confidentiality and what the consequences of breach will be (ie disciplinary steps).
- The decision around confidentiality should be made clear to the investigator and included in their terms of reference.
- If you do have a duty to make a report (for example, to a regulator) this should be explained.
- It is always helpful to make clear why confidentiality must be respected, as participants in the process may misconstrue confidentiality as an attempt to hush things up rather than an important protective measure.
- Thought should be given to offering those involved (including the alleged harasser) access to support and counselling so that they have a confidential space in which they can freely discuss the situation.
- Internal and external comms should be controlled to ensure that confidential information is not shared.
- Have a clear plan in place if it is decided that the circumstances do warrant anonymity (eg genuine fear of reprisals), how will interviews be conducted and notes taken and held?
- Interview questioning will need to be carefully planned to ensure that relevant information can be extracted while not revealing the names of those who have been given anonymity. This is a tricky area.
- In such circumstances the value of an experienced and well briefed investigator cannot be overestimated.
And there are many other steps and issues to consider. These matters were explored in detail by Maria Strauss and Katie Fudakowski, in our three-part webinar series “Safeguarding in the Workplace: Learning from #Metoo cases”. A recording of and resources from the webinar series are available on request.
Our Employment team has many years’ experience handling complex and sensitive workplace investigations acting for employers, employees or indeed carrying out the investigation as an independent team. Our range of investigation services and work examples are contained in our investigations brochure, please see here. Please do not hesitate to contact Maria Strauss, Kathleen Heycock, Sophia Coles, or your usual contact in the team if you have any questions about investigations.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, December 2020