Sexual harassment: a safeguarding perspective
Blog

In September, media coverage was dominated by reports of extensive sexual abuse and harassment of Harrods employees by Mohamed Al Fayed during the time he owned the London department store. The BBC reported serious allegations from over 20 former employees, including sexual assault and rape.
This October marks seven years since the #MeToo movement first went viral – a social campaign which encouraged people, especially women, to speak out about experiences of sexual harassment and assault. In the years that followed, employers adopted many measures to tackle sexual harassment in the workplace and foster a zero-tolerance culture, and #MeToo started to fade into the background. However, the serious and widespread allegations against Mohamed Al Fayed show that employers should never become complacent about the risk of sexual harassment in the workplace. In the month the duty to take reasonable steps to prevent sexual harassment in the workplace comes into force, it is as important as ever for employers to be proactive in creating safe and respectful workplaces.
Of course, in the area of safeguarding we have been here before. Numerous Serious Case Reviews, as well as statutory inquiries, have led to increased safeguarding regulation aimed at ensuring the safety of children and vulnerable adults in organisations. Central to our Safeguarding Unit is a belief in the importance of a preventative approach within organisations, and of working with organisations to create and maintain a safe organisational culture that manages safeguarding proactively, rather than waiting for a crisis before deciding to act. So, the most obvious question is whether there are lessons to be learnt from the child protection context which could easily be applied in the protection of adults, be they employees, self-employed, volunteers or applicants for such positions, from sexual harassment. This article aims to draw on established safeguarding principles to provide insights and potential answers to this question
Familiar traits
From a safeguarding perspective, the traits of the behaviour alleged on the part of the senior figures involved are familiar to anyone who has studied the traits of grooming behaviour in a child protection context. Typically, they are:
- An individual who is in a position of power and hard to challenge
- A willingness to abuse that position for sexual gratification
- Grooming and/or coercing a victim to engage in sexual activity
- The possibility of favour or advancement for cooperation
- The threat of non-advancement in the absence of cooperation
- A fear of retribution for raising concerns
- A culture in which rules can be broken and powerful rule breakers are not challenged
- As a result, concerns are not raised, and the conduct remains unchecked and hidden.
A culture of clear boundaries and openness
When it comes to established safeguarding principles, the advice for organisations is similar to what safeguarding leads recommend in environments where adults work with children or vulnerable adults. This includes introducing and maintaining:
- A code of conduct which establishes clear boundaries which all individuals working in an organisation, from most senior to most junior, are expected to comply.
- An environment in which all employees, no matter how senior, are held to the highest standards of behaviour in every respect and boundary breach is avoided or checked.
- An open culture where victims, their colleagues, witnesses, or anyone who senses something is wrong, feel able to share concerns of inappropriate conduct, from the most serious allegations to lower-level concerns, with a clearly identified manager with responsibility to receive and act on such concerns.
- Policies and procedures which entrench all of the above, backed up by a whistleblowing policy if those front-line policies and procedures prove ineffective.
- A system of governance which ensures management properly implements safeguarding systems and no-one is ever left unaccountable.
- Employment practices which ensure that individuals found to have committed serious misconduct of this nature are dismissed and their references for future employment reflect that (as distinct from bare fact references or settlement agreements with agreed references).
- A protocol for promptly informing statutory authorities when necessary, such as notifying LADOs if an adult has behaved inappropriately towards a child, or contacting the police if an employee may have committed a sexual offence against an adult or child.
What to do?
Every organisation should therefore reflect on recent events and ask itself the following questions:
- Who within your organisation could be most vulnerable to pressure or harassment? Is it the intern, work experience student, apprentice/trainee, job applicant, junior members of staff, or other individuals at particular points in their careers?
- What are the roles in your organisation which provide the greatest opportunity for one person to exert power over the careers of others?
- What steps are you taking to protect individuals from harassment from those in positions of power over them?
- Have you set clear behavioural expectations to which everyone, even the most senior manager, is obliged to comply?
- How confident are you that any concerns are currently being reported to management and that, where they are reported to management, they are acted upon?
- In the absence of the above, are you really fulfilling your duty of care to your own people?
Dealing with a crisis
When responding to a safeguarding crisis, the most effective approach involves the coordination of three different responses: safeguarding, management and communication. Organisations faced with a crisis in the workplace involving serious allegations of sexual harassment should similarly seek to ensure close cooperation between leadership teams, HR, risk, legal advisers, and communication teams.
Key issues to consider include:
- Immediate response: always follow your internal policy and take time at the start to explore your options, avoiding a knee-jerk reaction. Consider what immediate steps are required to safeguard the complainant, and what communication is required with the subject of the allegation.
- Communication strategy: be clear on how to handle communication (to the extent possible) of what is happening and the action being taken to key stakeholders, including dealing with press enquiries and, where appropriate, protecting the privacy of those involved.
- Investigation: it will be critical to carry out a prompt and thorough investigation into whether the alleged behaviour happened. For more information, see our investigation briefings.
- Police involvement: in cases of serious sexual abuse, it is possible the police may be involved, in which case employers will need to liaise with the police to ensure a coordinated response.
- Learning lessons: it is imperative whenever sexual harassment or abuse is alleged that organisations take the opportunity to learn lessons and implement any changes required.
- Finally, don’t wait for a crisis to happen before you act. Develop a crisis management plan and agree a crisis response team which is equipped to respond quickly in the event serious allegations arise.
It is important to be clear that a similar response should be taken to allegations of historic sexual harassment. Just because an incident occurred in the past does not mean it can be ignored or brushed under the carpet. As demonstrated by the allegations against Mohamed Al Fayed, the reputational impact of a historic abuse allegation can be highly significant and, depending how it is handled, potentially very damaging for any organisation.
Lead or lag
Based on the progress made in child and adult safeguarding over the past 25 years, there is real scope for organisations across all sectors to take meaningful action and become leaders in safeguarding their staff, volunteers and members from sexual harassment. For those who take such a step there will undoubtedly be plaudits, and for those who do not, they may yet find themselves tomorrow's front-page news (as well as in breach of the new preventative duty and so subject to the compensation uplift which comes with it). More to the point, however, it is undoubtedly the case that organisations which adopt and apply these simple safeguarding principles will be safer organisations for people to work in and interact with.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, October 2024