Sexual Harassment at Work

Background: Failure to Prevent

Companies operating in the UK can be held criminally liable for failing to prevent some financial crimes that take place on their watch (e.g. bribery and tax evasion – and the trilogy will be completed by fraud in 2025), even if the crimes take place abroad or are committed by a third party operating on the company’s behalf.  The fines are unlimited and the Company’s only defence is that it had reasonable or adequate procedures in place to prevent the underlying crime. 

In order to be successful at advancing this defence, a Company needs to be able to demonstrate the procedures they had in place to prevent wrongdoing. This is why you are sometimes asked to sign a register when attending compliance training.

Background: Sexual Harassment

The #metoo movement triggered a significant shift in attitudes towards sexual harassment and since this watershed in October 2017, we have had several high-profile cases of sexual harassment that have been poorly handled by organisations and employers.  The media industry gets particular attention, partly due to the profile of those involved but also because of our spectacularly bad track record for brushing things under the rug.

The New Law

That’s the backdrop against which we have the new duty “An employer (A) must take reasonable steps to prevent sexual harassment of employees of A in the course of their employment.”  The needlessly confusing reference to (A) aside, this is step change, although not entirely new.

The new law is not criminal, and it is not a standalone cause of action: no one will be prosecuted for it and no employee can bring a claim against an employer for it.  However, if an employee does bring a claim against their employer for something else and that employer has also failed to prevent sexual harassment, there can be a 25% uplift in damages.   The Equalities and Human Rights Commission could also launch its own investigations into employers that it suspects are failing to honour this new obligation. 

What Now?

As we see it, companies (As) have three options.

Option One: nothing – many As will opt for this.

Option Two: amend some wording or insert a new page in an employee handbook that no one reads, maybe even send an email round saying you’ve done that…this might be enough.

Option Three: take material steps to actually reduce the risk of sexual harassment, protecting your people and genuinely mitigating your risk of an increased liability.  Genuine action will also alleviate the more subtle risks that put projects in jeopardy – people not wanting to work with you; losing talented people who don’t feel safe; backers not trusting you can handle issues; negative press articles and damaging rumours.

In the creative industries it matters more than in many because of the importance of reputation and the inherent power disparity in many working relationships. Plus, the spotlight is ready and willing to be pointed at any bad actors – real or perceived – and often suspicion and investigation alone can have serious consequences.

What does Option Three really look like?

We aren’t talking about re-inventing the wheel.  “Compliance” does not mean you need to eradicate joy from the office, ban alcohol from your wrap party or cancel your Christmas lunch.

The best compliance and corporate governance systems are bespoke and effective – organisations of 10 employees will have very different procedures in place than those with 10,000 and that is what the law expects.

If anyone tells you otherwise, they are trying to sell you something that you don’t need and probably doesn’t work.  There are a lot of expectations on organisations of all sizes these days (environmental, health and safety, financial crime, data privacy, regulatory and HR) but these should be seen as tools and safeguards rather than obstacles. 

Start with the basics: what examples and risks can you think of that might actually come up for your people?  What systems might actually help?  Would they work for us? 

Grey Seal Media is offering a free consultation to clients to help boost/update/tweak their systems to cover this new law.  We don’t believe in the generic so we have drafted a short questionnaire for you to complete about your current set-up and from there we will advise you on what (if anything) we think you should do. To receive this questionnaire, or to chat about your compliance or corporate governance more broadly, drop us a line to hello@greysealmedia.com or any member of the team.