Harassment from Hollywood to Holyrood: last year's biggest story?

We saw the Uber drivers’ “gig economy” cases and the removal of the employment tribunal fees, as well as another of my favourites, the BBC pay debacle, which we’ve already blogged about at length.

As you’ll recollect, the BBC disclosed what appeared to be a random approach to fixing senior staff salaries, which just happened to favour middle-aged men.

But there is one news story in particular I believe will have the greatest impact this year and beyond: the sexual harassment scandal.

I won’t lower the tone by repeating the salacious details of alleged behaviour from Hollywood to Holyrood, instead I’ll focus on the relevance for businesses closer to home.

It’s easy to look at some of the more extreme allegations being made and say to ourselves: “that would never happen here.”

Yet that’s just not the case.

And, in thinking that, we’re in danger of underestimating — or even missing entirely — the financial and reputational risk to our own businesses. In fact, the likelihood of claims is all the greater given the spotlight has rightly now been shone on harassment in the workplace.

What is harassment?

Harassment for employment law purposes is far wider than some may expect.

There’s much more to it than the highly-publicised, extreme and potentially criminal behaviour we heard about in the last few months of 2017.

It certainly captures the actions attributed to Harvey Weinstein and others, but also covers conduct that’s more common in the workplace.

For a start, claims for harassment are not limited to sexual misconduct.

In fact, they can cover any of the protected characteristics in the Equality Act including —

• Race

• Religion

• Gender

• Age

• Sexual orientation

• Disability

Plus, the definition of harassment includes behaviour related to a protected characteristic that may create an intimidating, hostile, degrading or offensive workplace for an employee. For example, this could be a racist comment, an ageist joke or an overly-robust statement of religious views.

Regrettably then, it’s likely the majority of people will have seen behaviour that could fall within this definition of harassment.

In fact, at our Inverness employment law café in December when our audience was polled on the question: “How common is harassment in the typical workplace (50 employees)” 67% said it was a weekly occurrence, with 17% saying monthly.

I think this is a realistic assessment as to how often behaviour meeting the definition of “harassment” may occur.

Are employers liable?

If employees are guilty of behaviour amounting to harassment, then employers will be liable unless they can demonstrate they took all reasonable steps to avoid this behaviour.

The test of all reasonable steps is a significant hurdle, but there are some things employers can do that may help —

• Having well-drafted equal opportunity and disciplinary polices

• Making sure all staff are alerted to the policies

• Ensuring colleagues know the required standards, including the risk of disciplinary action if they fall short

• Practical training

If you are aware of something that could be harassment in the workplace, do not ignore it or wait until you receive a complaint

Motive does not matter

Remember that “I didn’t mean to cause offence” or “It was just a joke” are not defences.

If someone is reasonably upset by a comment on the grounds of race, religion or the other characteristics mentioned, the motives behind the comment are not relevant.

And this isn’t about “political correctness gone mad” or “banning jokes in the workplace,” we can all have good-natured relations without falling into the trap of harassment.

In short, if you say the wrong thing to the wrong person at the wrong time you may encourage a claim, so why take the risk?