When banter crosses the line and becomes abuse
I’ve advised on a number of workplace sexual harassment cases over the years, acting for both employers and employees. The majority have resulted in the employee leaving employment with a financial settlement.
This is probably not a surprise to anyone. The outpouring of #metoo stories on social media following the allegations against Harvey Weinstein show that most victims of harassment – primarily women, but some men too – do not come forward for a number of reasons. These include feeling ashamed, needing the money and not wanting to hurt their career by being considered a troublemaker.
My experience has been that those who do make a complaint usually only do so when they feel they have no option but to leave their job.
If your employee client says they just want to secure a sum of money that will tide them over till they get another job because they can’t face the stress of a formal procedure (or, in the more serious cases, reporting the matter to the police), you don’t push them to stick their neck out.
Instead you summarise the potential grievance as part of a without prejudice settlement proposal to the employer. And the most common response from employers, particularly in the private sector, has been to negotiate a confidential pay-off of the employee.
This way of resolving the issue has traditionally been seen as the least damaging to the business, involving less cost and distraction, particularly where the alleged perpetrator is a senior or high-performing employee.
But this approach has helped conceal the issue of sexual harassment rather than resolving it. The #metoo debate has led to a shift in culture and employees will now be more willing to speak out for themselves and their colleagues, not because they are jumping on a bandwagon, but because they now feel less isolated and therefore braver.
Employers need to look afresh at ways of eradicating sexual harassment if they want to ensure they have happier, more productive employees whose talent is retained, rather than having to deal with grievances or tribunal claims and recruiting and retraining for vacancies created by employees leaving.
Here are six tips that may help:
An anti-harassment and bullying policy – you may already have one but if you don’t, introduce one. It should set out what sorts of conduct are unacceptable and that an employee is safe to raise a complaint if they feel they are being harassed.
Your policy has to be more than just words. Breathe life into it by training your employees on it including senior management and owners. One of the most frequently asked questions is when does flirting or banter become unwanted sexual conduct. Use worked scenarios to create debate on this among employees and encourage a cross-section of views which can highlight where additional training is needed and where abuse of power may be occurring. Inevitably, people will have different opinions, but you are a very long way towards improving the workplace culture if employees think about the impact of words or actions on others and that not everyone experiences things the same way.
Flirting is not banned but as a general rule in life if you want someone to go out with you, then you don’t start by lunging at them physically from nowhere. You ask them politely and respect their answer if it is no. Continuing to flirt when someone has made it clear they are not interested can be sexual harassment. Any kind of conduct which you wouldn’t want other people to find out about is probably unacceptable.
Be prepared that introducing a policy and training on it can lead to an rise in complaints. You will have highlighted to your employees what sort of conduct is unacceptable, that you do not condone it and what they can do to stop it. It is particularly difficult when conduct has been going on for a long time and the perpetrator has no idea they have been causing offence for some years. Just because it has taken someone a long time to come forward does not make the complaint less valid, but be prepared for the impact on individuals of having a complaint made against them by someone with whom they thought they had been enjoying nothing but a bit of banter for years.
Try to approach every complaint neutrally and with an open mind. Yes, there will be times that a complaint is exaggerated because the employee is looking for a pay-off or was being managed for poor performance or attitude, but these will be in the minority. Most complaints are genuine, but there are also always two sides to every story.
Workplace mediation can be a very effective alternative to formal grievance processes. It can improve understanding and help rebuild working relationships. It does not have to be the case that a complaint inevitably leads to one or both parties leaving employment.
I am running a free workshop on dealing with sexual harassment and the role of mediation on November 28 in conjunction with certified workplace mediator Alison Love of Resolution at Work. Bethan Darwin is a partner with law firm Thompson Darwin.