Shining a light on best workplace practices
On Thanksgiving Day today, Hollywood actress Uma Thurman chose to thank her stars for being alive and safe (possibly from the sexual advances of notorious producer Harvey Weinstein).
In a cryptic message, Thurman posted a picture of herself as ‘The Bride’ from the movie Kill Bill and validated her #MeeToo experience by writing this message for Weinstein: “I’m glad it’s going slowly – you don’t deserve a bullet.” The actress has worked on seven films with Weinstein, including Pulp Fiction and the Kill Bill movies.
While Thurman is yet to offer an official statement regarding her allegation today, Weinstein scandal has created ripples which are being felt in a range of other industries and even governments. So what are the lessons UK businesses can learn from this episode?
Donna Martin, Partner at Mackrell Turner Garrett, says: “With celebrities being prepared to speak out against Hollywood heavyweights such as Harvey Weinstein and Kevin Spacey, a global conversation about sexual harassment in the workplace has been sparked. Whilst such harassment has been occurring for decades, it would appear that it is only now that those affected are willing to confirm allegations. This could be due to the fact that, due to the current climate, they feel they will not suffer any detriment for voicing concerns as they may have previously.”
To make British organizations aware of what constitutes as “sexual harassment in the workplace” and what step employers must take to ensure they are compliant with the current legislation, Martin has decoded the jargon here.
What is sexual harassment?
Sexual harassment occurs where both:
- A engages in unwanted conduct of a sexual nature; and
- The conduct has the purpose or effect of either violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
B. This is the current law in England, Scotland and Wales in accordance with section 26 (2) Equality Act 2010 (“EqA”).
The Equality and Human Rights Commission Employment Statutory Code of Practice (“EHRC Code”) states that conduct of a sexual nature may:
- Be any unwanted verbal, non-verbal or physical conduct of a sexual nature; and
- Includes unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, displaying pornographic photographs or drawings or sending emails with material of a sexual nature.
What obligations does an employer owe an employee?
An employer has a duty to protect its employees and other workers from harassment in the course of their employment; this includes harassment by members of staff and can extend to third parties for example the employer’s customers, service providers or visitors.
An employer also has an implied duty to provide a safe and suitable working environment to its workers. An employer should therefore ensure that it has an anti-harassment policy in place.
The EHRC code suggests that a harassment policy should:
- Describe the protected characteristics and clearly state that any harassment of workers or job applicants related to any of these characteristics will not be tolerated;
- Make it clear that harassment will be treated as a disciplinary offence;
- Clearly explain how a worker or job applicant can make a complaint, informally and formally;
- Make it clear that complaints of harassment will be dealt with within a reasonable time, treated seriously and confidentially, and that someone complaining will be protected from victimisation;
- Describe what support is available to a worker or applicant if they think they are being harassed, for example, counselling or a worker assistance programme;
- Describe any training/other resources available for workers to help them spot and stop harassment;
- Describe how the policy will be implemented, reviewed and monitored; and
- Include a review process; this is particularly important if someone has complained of harassment, as you will need to make sure that your policy was effective in dealing with the incident.
Whilst an employer is not legally obliged to have a separate harassment policy, it is advisable that one is in place and that the employees receive training on its content. By doing so it will assist an employer (who is subject to a sex discrimination claim) with evidencing that they have taken ‘reasonable steps’ to protect their employees from harassment.
When Justice League-fame Ben Affleck appeared on a show last week, he was questioned about the allegations of groping women. To which, Weinstein’s friend said, among other things: “I’m not a superhero…” So here’s hoping that post-Weinstein era educates some men on workplace behaviour and tolerance.