23 November 2017 
Pinsent Masons,
Our partners at Pinsent Masons have observed a "spike" in the number of complaints of harassment being raised with Higher Education sector clients.
According to the Trades Union Congress (TUC), over 50% of workplaces have an issue with sexual harassment – a figure that, sadly, will come as no surprise to anybody who has been following the news in recent weeks. Of course, the HE sector is not immune from this issue.
The Guardian reported earlier this year with the headline: 'Sexual harassment 'at epidemic levels' in UK universities', a headline no-one in the sector would wish to wake up to. But despite these findings, and the fact that sexual harassment is unlawful under the 2010 Equality Act, it is rare for these cases to be escalated to an employment tribunal. In the 2016 report, "Still just a bit of banter?" produced by the Trade Union Congress in association with the everyday sexism project, it was reported that four in five women did not even report the sexual harassment to their employer, and of those who did, very few saw a positive outcome.
While this disparity could reflect effective internal confidential grievance or harassment processes which address these issues, many of the stories that have emerged recently share a common thread of victims fearing the personal and professional repercussions of reporting their experiences.
Universities also have to deal with this type of allegation being raised by students (and alumni), and have policies in place to deal with these issues.
We read an interesting thought piece which espouses the view that the risk of harassment on campus has been hyped-up. However, also reported recently is Cambridge's decision to appoint a student sexual assault and harassment adviser. Whatever your view, student protection will and must remain an area of keen focus. That can't be at the expense of addressing allegations brought by staff, which must also be a priority. Helpfully, fixing the culture in terms of respect at work should also help to foster a culture of respect for students and others with whom staff interact, and vice versa.
Looking at this from the employment angle, what is clear is that University employers cannot simply pay lip service to a hastily-drawn up 'zero tolerance' policy. Rather, they must focus on creating a culture in which abuses of power, from which such harassment often flows, are not tolerated, and on showing that any complaints will be dealt with confidentially, effectively and sensitively, on both the side of the accuser and the accused. The law is not a high-handed arbiter of political correctness, but rather a framework in which every employee should be treated with respect and dignity by their employers and fellow employees.
Harassment is unwanted behaviour which is either intended to, or has the effect of, violating an employee's dignity or creating a hostile environment. Importantly, this means that the effect of the unwanted behaviour need not be intentional in order to be considered harassment. To be considered sexual harassment, the harassment must either be related to sex or be of a sexual nature.
Harassment is a form of discrimination under the 2010 Equality Act, which means that an employee who is harassed has the right to take action through the employment tribunals and civil courts. It can happen on its own, or alongside other forms of discrimination. Abusive comments or jokes, whether spoken or written, inappropriate touching, images and graffiti, facial expressions or insulting gestures are all examples of behaviour which may constitute harassment.
An employee being treated less favourably at work such as not being promoted, because of their reaction to sexual harassment is itself harassment under the Equality Act. This is the case whether the person treating the employee less favourably is the person who originally did the harassing, or somebody else.
It is worth re-stating that it is usually the perception of the victim that is relevant, rather than the intention of the harasser. In circumstances where the harassment is unintended, and the case proceeds to tribunal, there is a process by which the tribunal will make an assessment of whether the victim's perception is, in fact, reasonable. This assessment does not apply where the harassment is intended.
Every employer must put in place a clear, transparent and confidential process for dealing with claims of sexual harassment. This process must be easily accessible and be applied consistently, regardless of the level or popularity of the alleged harasser.
Confidentiality and fairness to both the accused and the accuser is essential. Allegations should be dealt with swiftly, but not without giving those accused the opportunity to respond to or refute them. HR must support both parties while investigation is ongoing. An employer could find itself in difficulty, or even being sued from a duty of care perspective, if vague and possibly unfounded allegations are made by one employee against another without thorough, independent investigation.
Going beyond the handling of individual complaints and the bringing to life of anti-harassment policies, conscientious employers should consider what they are doing to empower members of staff with 'protected' characteristics. Younger female employees are often more vulnerable to "power plays" so they must be empowered to push back on inappropriate behaviour through dignity at work policies. This can help employers too, as being able to demonstrate that they have taken steps to create an environment which is hostile to harassing behaviours not only supports their employees but may allow them to transfer responsibility to the individual perpetrators if claims are brought.
'Tone from the top' is important here. An environment in which leaders, male and female, treat people with dignity and respect and act immediately to stamp out inappropriate behaviour will have a huge impact given the link between power and harassing behaviours. Ultimately, however, empowering the female and minority employees of tomorrow to speak out against harassment should start even earlier, at school age, and our schools have a responsibility for this.
No doubt Unions will be keen to support their members in taking the brave step of challenging behaviours, particularly of those in authority. The TUC has recently issued an e-note guidance for TU Reps on this topic.
The widespread condemnation with which recent reports of historic sexual harassment have been met may yet signal the start of a cultural shift. This, coupled with adequate training and a workplace environment in which those in positions of power are held accountable for their actions, should make the workplace a safer environment for all.
We are working with a number of Universities on a broader agenda of cultural change which involves the promotion of:
Our own firm is committed to diversity and inclusion, and we recognise that sometimes it takes more than a legal perspective to provide comprehensive solutions to complex challenges. With that in mind, Pinsent Masons acquired Brook Graham earlier this year, a market-leading diversity and inclusion consulting business with a stellar client list and demonstrable track record of improving diversity and inclusion at some of the world's best known businesses.
Pinsent Masons itself has an award winning approach to diversity and inclusion, being the highest ranked law firm in the Stonewall Workplace Equality Index (2nd place overall), winning the Diversity Innovation award at the Legal Week Innovation Awards 2017 and the Diversity and Inclusion award at the Personnel Today Awards 2016, amongst others. Together with Brook Graham, we are able to create creative and impactful solutions to one of the most pressing issues of our time.
For further details on how we could support your organisation in terms of developing your D&I strategy and promoting cultural change please contact Helen Corden.
