Fifty shades of sexual harassment

Employers have a duty to ensure employees feel comfortable at work. Picture: Getty

IF YOU were asked to classify your workplace with regard to suitability for employees in terms of issues such as impudence, sex and profanity, what rating would you give it?

Universal, suitable for all? PG – may contain mild language and sexual references? If water cooler talk or cigarette break chat has been dominated recently by talk about the film version of Fifty Shades of Grey would you have to re-think and issue an 18 certificate on account of the explicit sexual references and detailed sexual activity?

The question is a bit tongue-in-cheek but, at the risk of being accused of adding to employers’ ever increasing “must-do” list and stirring up a hornets’ nest, would it not be helpful for an employer to routinely go through a classification process of this sort for its workplace? In fact, I would go further and say that it makes good business sense to find out what’s going on in the workplace and question whether the working environment is suitable for all.

Think about it: your employees can choose whether or not they want to make a trip to the cinema to see a particular film or to change channels if they don’t want to watch what’s on the box. The same choice doesn’t always exist at work.

The difficulty with being the boss is that you’re often excluded from the banter. Employees decide when they want to include you so the chances are you’re only hearing what they want you to – and it’s being censored. If you don’t know what’s really going on, you are riding roughshod over employee rights and may be walking blindly into an expensive Employment Tribunal claim with considerable reputational damage.

Love, romance and sex are difficult subjects for employers to get to grips with. That said, employers are becoming increasingly aware of their responsibilities to “police” workplace relationships by putting in place policies which lay down clear guidelines as to how dating colleagues should behave and including safeguards to protect confidential information.

Sadly, it is the platonic relationships, the everyday interactions we have with colleagues, which remain a grey area and, arguably, the biggest risk facing employers in terms of sexual harassment claims.

If these interactions were mundane, there would be little to fear, but we all know that they sometimes stray into dangerous territory.

Take the example an obsessed fan of, say, Kim Kardashian; he has the provocative calendar prominently displayed, he goes on at length, to anyone who will listen, about her generous attributes and, to top it all off, the magazine cover baring her naked bottom now takes pride of place on his desk.

To some this may be perfectly acceptable, even amusing. One or two may have shown no interest and not looked at the picture, and were only aware of the picture’s existence on his desk by observing what was going on around them. Imagine, though, that if one person who saw the picture spoke freely, in explicit terms, about what they had just seen and what they really thought about it.

Whether it’s a photograph of a nude or talk of Fifty Shades of Grey, some employees will take it all in their stride and see it as harmless entertainment. Others will disapprove and feel an “intimidating, hostile, degrading, humiliating or offensive” working environment has been created and feel they can’t complain about it.

What might this mean for the employer? In short, the risk of a claim for sexual harassment.

Sexual harassment is any unwanted physical, verbal or non-verbal conduct which has the purpose or effect of violating a person’s dignity. A single incident, if sufficiently serious, can amount to harassment and the conduct needn’t be directed at anyone in particular; it is of no consequence that the person complaining did not see the photograph, or is female complaining about other women describing scenes from the film. It will not defeat a claim of sexual harassment that the person did not complain at the time. To make matters worse,

an employer will normally be vicariously liable for its employees’ actions while in the

workplace.

An employer will never go wrong with an Anti-harassment and Bullying policy which clearly explains nuances of sexual harassment and the type of conduct that will not be tolerated.

However, it has never been truer than with sexual harassment that it is not what you say, it is what you do. Employers would be well-advised to find out exactly what is going on in their workplace and show everyone what is acceptable by promptly stamping out improper behaviour and leading by example. I am not suggesting a ban on office banter – it is an important part of work life – but plenty of laughs can be had with a PG rating.