The question of acceptable behaviour at work has come under scrutiny recently, particularly as many news outlets have reported on a recent incident at Citigroup where one of the business’ top investment bankers has stepped down from his job after 28 years with the business.  A number of outlets, including The Times, Bloomberg, and The Telegraph, have reported that he resigned after being suspended due to allegations that he had told a female employee that he needed “love and affection” during a work event in Barcelona.

The alleged incident may cause some to ponder whether the comments are bad enough to be suspended over, as it could have just been a bit of banter while others will think an individual should be suspended, and potentially dismissed, in circumstances like these, as it’s sexual harassment.  The potential difference in opinion is an important one to recognise, and is an example of where personal opinion may impact how a business manages a similar situation.  In this blog, we’re going to look at what sexual harassment is, how the lines between banter and harassment can get blurred and how employers can protect themselves from complaints. 

Sexual harassment is defined by ACAS as unwanted behaviour that must have either “violated someone dignity” or “created an intimidating, hostile, degrading, humiliating or offensive environment for them”.  That may seem clear but there’s an important extra point which ACAS add to the end of each of those two points, and that is “whether it was intended or not”.  It isn’t enough for the person who made the comments to have not meant anything by it, or for it to have been meant as banter, it can be viewed as sexual harassment if that’s how the behaviour is perceived by the other party.

There are a number of behaviours that ACAS gives as examples of behaviours that may constitute sexual harassment which include flirting, making sexual remarks about a person’s body, clothing or appearance, displaying or sharing pornographic or sexual images, touching someone against their will, asking questions about someone’s sex life, making sexual comments or jokes about someone’s sexual orientation or gender reassignment or sexual assault or rape.

Where lines can get blurred

As we mentioned above, ACAS define sexual harassment as unwanted behaviour.  It’s important to recognise this point as we’re all different.  We find different types of jokes funny, we have different views on what’s offensive.  So thinking about harassment as what we find offensive isn’t enough, we need to understand that we have to respect other people’s views and opinions.  In this regard, it’s helpful for employees and employers to remember that what’s acceptable to you isn’t necessarily acceptable to someone else and that what’s acceptable to most people isn’t necessarily acceptable to everyone. 

Recognising this fact can help an employer grasp the importance of not allowing behaviour to become acceptable because it’s meant as “banter”.  In fact, as Personnel Today mentioned in an article about sexual harassment, in one tribunal, Minto v Wernick Event Hire Ltd, the tribunal noted that “‘banter’ is a loose expression, covering what otherwise might be abusive behaviour on the basis that those participating do so “willingly and on an equal level”.  The tribunal went on to note an important point on seniority, stating that banter “can easily transform into bullying when a subordinate employee effectively has no alternative but to accept/participate in this conduct to keep his or her job”.  Those who are in leadership roles need to be aware that it’s important for employees to not feel forced to accept a manager’s conduct due to concerns about losing their job.

How employers can protect themselves

While an individual will be held responsible for the actions they take, employers can also be held responsible, through vicarious liability.  To protect themselves, an employer will need to show what they have done to manage their duty of care towards employees.  This can be achieved thorough a number of means:

• Up to date policies – Policies that were written a long time ago and haven’t been updated since, are less likely to demonstrate that an employer is actually committed to keeping their employees safe from sexual harassment. 
• Regular Training for all employees – it’s not enough to have policies, employees need to have received training on them.  This training can’t be a one off, or just done as part of an employee’s induction, it needs to be revisited if an employer is going to rely on it to demonstrate that they have fulfilled their duty of care.
• Ensuring line managers know what’s expected of them – line managers who are well trained will know when to seek advice from HR, when to step in and stop certain conversations, and how to set the right tone for their team. 
• Thoroughly investigating complaints – ignoring a complaint or decided that it was only banter so it doesn’t need investigating, could result in a claim against the business so make sure the investigation process is clear and thorough.
• Creating the right culture – the leadership team have to set the tone around what’s acceptable in the workplace.  If employees see the Managing Director acting or talking inappropriately, they are more likely to think it’s acceptable so make sure that the right tone is being set from the top.  How complaints are managed will demonstrate whether a business is really interested in creating a zero-tolerance culture.

It’s also important to recognise that employers have a duty to protect a number of people against sexual harassment at work – employees, workers, contractors, job applicants and self-employed people who are personally hired to do work, are all protected by law so they all need to have the same protection .

If you would benefit from help in ensuring your company is up to date with policies and training or if you require an experienced Consultant to conduct an investigation or hearing, please get in touch with a member of the View HR team.