Managers need to ‘step up’ to combat workplace harassment

Out-Law News | 02 Feb 2021 | 9:41 am |

Trish Embley tells HRNews about training managers’ to recognise the need to take action to safeguard staff
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  • Transcript

    Are you doing enough to protect your staff from harassment as they continue to work online from home? This is in the news after a survey published by Rights of Women which reveals that Covid-19 has seen a sharp rise cases of online sexual harassment with harassers taking  advantage of online work platforms and social media during the pandemic. People Management comments on the data which shows nearly half of women who have experienced harassment said that some of it, or all of it was carried out online. Nearly a third who went on to report it to their employer said the process that followed had been negatively impacted by the pandemic. In light of the survey, Rights of Women are calling on the government to introduce statutory guidance for employers to address the issue which they say has been shelved for too long. Last year the government announced a package of commitments to tackle sexual harassment at work but the Government Equalities Office has yet to respond to their consultation on sexual harassment. Some of the women that were surveyed disclosed what had happened to them. One spoke of her experience of cyber harassment via Zoom where the director of the company took screenshots of her, and other women, which he shared with colleagues making derogatory comments about them. Another reported the difficulty of reporting incidents of harassment when interactions are online. She said the fact it was happening on Zoom in front of others and done in a jokey manner made it difficult to address. 

    This report is focused on sexual harassment but, of course, the problem carries over to all forms of harassment and it is a trend we noticed ourselves, particularly since the second lockdown. To help clients address this, we will be running an online harassment training course on 9 February – three 50 minute sessions from 10am to 1pm. It looks at the employers' duties and the recent guidance from the Equality and Human Rights Commission as well as the practical steps you can take to help managers spot issues and address them effectively. The course has been devised by Head of Client Training, Trish Embley, who says the course is geared to prevention and making sure that mind-set is mainstreamed in the everyday. What does that mean exactly? I phoned Trish to find out:

    Trish Embley: “Well, what we mean is you can have a policy, you can communicate it, you can send people on a training course but, for example, what happens if we're all in a physical meeting or a virtual teams meeting and something inappropriate is said and there's a manager there. Now we all know, as humans, we've been in that situation where something is said and your jaw drops, and you feel very uncomfortable, but what do you do? So this to us is the next level that a lot of our clients are taking, supporting people, you know, in the moment. So the first most important thing is that manager recognises their duty to do something, they're aware of the impact. Now that might be on a particular individual, but it might not. Looking at the culture within our clients we're now working with within multi-generational workforces, there will be a lot of people looking to that manager and saying, you need to do something about this and if they don't, that individual, or those individuals, might question whether this is the sort of work environment that they want to work in. So in other words, we're trying to look at this topic of harassment not just in respect of complaints, but how you need to adapt your culture so that harassment is something that there is a clear message is not tolerated. So we'll be looking at that and then we will, of course, be looking at how you respond. We will be touching on the new EHRC guidance which has got some things in there that draw our attention that perhaps wouldn't have been embedded in many of our clients' policies before. Now I have to stress it is just guidance, it's not law at the moment. The government said pre-pandemic, once they see the EHRC guidance they will themselves look at developing a code of practice and that code of practice would be something tribunals to take into account but one of the most interesting things in the guidance that we're discussing with clients is this recommendation that where you have a complaint, you let the complainant know the outcome. Now, we would have always said that that should be the case, but what's different here is the particular action, for example disciplinary action, that was taken against the individual. Now, a lot of our clients will say oh hang on, aren't there confidentiality issues? What about GDPR? and that's why the guidance goes on to say that businesses will need to start reviewing their privacy policies, their disciplinary policies, in other words to give people a heads up that it may, and I stress it may, in certain cases, be that any disciplinary action taken against you would be divulged to the claimant and, personally, I think this isn't a sort of blanket in absolutely every single case, I think to support the sort of careful balance that's needed between privacy and the rights of the complainant, some sort of assessment will be needed to be carried out and documented as to why in this particular case disclosure would be important. So for example, if you've got a very junior member of staff who's been harassed, perhaps by more senior older member of staff, they've gone off sick while they're raising their complaint, they're very worried about coming back, they're worried about what the impact is going to be on their career, you can see a case starting to develop there for why that person needs some comfort over and above 'trust us we've sorted it' to feel able to come back into the into the work environment. Now that's just one example but the direction of traffic is very interesting in this area, and what it's getting at, and what our course is getting at, is looking at the existing reasons why people are putting up and shutting up, and not just complying with the law, but getting to the root of that issue and changing our culture and our environments so that people do feel able to come forward and raise concerns and know that there'll be supported."

    Joe Glavina: "You mention the junior member of staff who says she's being harassed by someone more senior. In that situation, when it's investigated, it's likely to be a case of one person's word against another. So how can you move that forward?" 

    Trish Embley: "So 'one word against the other' is always tricky but I think when we look at cases we sometimes find that perhaps there isn't sufficient investigation carried out into these 'one word against the other' cases. So we've seen a number of investigation reports where the investigating officer might say, well, x says this happened, y denies it, I can't take this case any further because there's no evidence. Now we would say there is, well, there's no first hand direct evidence because only the two people were there and involved, however, what we're trying to raise awareness of, and educate investigating officers on, is the importance of corroborative evidence, particularly in civil, employment-related cases where the burden of proof is on the balance of probabilities what's more likely than not? So for example, if I were to allege that something had happened, an act of harassment, and there's only me and the alleged harasser there, then we would look at things like what did I do immediately after the alleged harassment took place? Did I speak to anyone? Did I text anyone? Did anyone observe my behaviours? Did I appear upset or did I seem completely normal and happy? So there has been a first instance case on this where the individual in question, she had sent a text to her sister, she'd gone to a GP, she was signed off with stress relating to an act of harassment, and there were so many things that tribunal could point at to say, why would she leave her job when she had no other job to go to? Why would she have texted the exact words alleged to her sister, you know, she even went so far as to inform the police. These are the sort of things that if you're carrying out an investigation, they don't prove anything but, of course, we're not talking about the criminal burden of proof, but they would perhaps in the view an investigator, say this gives me enough to say that at least there is sufficient evidence for this to proceed now on to a formal grievance, or disciplinary, whichever the individual was investigating."

    Finally on the training side, Trish has also devised a pair of e-learning modules on harassment at work, one for managers and the other for employees. They both have a fixed cost, no subscription, so you can train literally hundreds of people for a one-off payment. Both modules are available for a free demo so please do get in touch if that's of interest.