Dealing with sexual misconduct when your business is too small to have HR

How disruptive would it be if two of your employees suddenly couldn’t work together?

Sexual harassment doesn’t just happen at large companies, Hollywood film studios and in the corridors of Westminster. It also takes place in small businesses, where the impact could be more severe because people interact with one another more often and in closer proximity. Conversations about inappropriate behaviour at work are tricky, but you mustn’t avoid them.

What is sexual harassment?

The Equality Act 2010 defines sexual harassment as “unwanted conduct”, which “has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.” It is a form of unlawful discrimination.

Making sexual comments or jokes, sending emails with sexual content, displaying pinup calendars of scantily clad women and unwelcome physical behaviour such as touching can all qualify as sexual harassment.

“You should also be aware that sexual harassment which includes assault or physical threats may be a criminal act and that you may wish to report matters to the police,” says Lucy Merrifield, HR consultant and founder of Mesh Consulting.

But what about staff simply flirting at work? Could making eyes at someone be construed as sexual harassment?

Merrifield explains: “The workplace has always been a primary environment to meet a partner, and that isn’t a bad thing or something to necessarily discourage. So, although flirting at work isn’t that professional, it isn’t harmful when reciprocated. But people must recognise and take the hint when it’s not received positively, and stop.”

What to do when there’s no HR officer

Staff usually find it easier to discuss sensitive issues with HR rather than the boss. If you have no HR support, you may be unaware that one of your team members is in distress.

In fact, a 2016 TUC survey found that, while more than half of women had been sexually harassed in the workplace, only a fifth of them told their employer.

“However, as you are liable for the behaviour of your employees while at work, including at work social events, it is your responsibility to watch out for the signs that something inappropriate might be going on,” says Becky Boston, co-founder and director at HR consultancy Emphasis Ltd. “These signs may include increased absenteeism, an employee avoiding work social events, low productivity and the employee handing in their notice.”

You need to address these issues. “In the first instance, you should have a supportive and impartial discussion with the individual to understand what has caused these changes in their behaviour and provide the opportunity for them to raise any concerns they may have,” says Merrifield.

If your employee makes a complaint

If they allege they are being sexually harassed by a work colleague, follow your company’s anti-harassment and bullying policy (if you have one).

Otherwise, follow the company’s grievance procedure – it’s a legal requirement that you have one in place (refer to the ACAS Code of Practice on Discipline and Grievance for guidance).

“You should arrange a formal meeting with the employee to hear their grievance,” Merrifield says. “They should be allowed to be accompanied by a work colleague or – at your discretion, because the situation is emotionally distressing – by a friend or a family member.”

Then carry out an investigation.

Merrifield says: “Ensure the individual is safe from retaliation and taken out of the situation while the investigation is underway. You must also afford the same support to the accused during this time: investigations should be conducted fairly and without judgement.”

However, Boston adds: “If necessary and appropriate, the accused member of staff may be suspended during the investigation.”

At the end of your investigation, give a written outcome of the grievance to the employee who has made the allegations. They have the right to appeal against it, if they disagree. “The appeal will need to be heard by someone who has not been involved in the grievance process to date,” Boston says.

Boston adds that, if the grievance process results in the accused being subject to disciplinary action, the formal disciplinary process must be followed according to the company’s disciplinary procedures or the ACAS Code of Practice on Discipline and Grievance.

If you do nothing (or not enough)

Merrifield points out that if you don’t take the allegations seriously and fail to protect the affected employee, they may get signed off with stress and be absent from your business for a long period of time. “Also, they may resign under constructive dismissal and raise an Employment Tribunal claim against you as the employer for damages.”

There is no limit on the compensation awards for discrimination claims. A couple of years ago, the Employment Tribunal awarded over £832,000 for sexual harassment to a former NHS director. “For a small business the fine would not be as high as that, but it could still have a very significant impact,” Boston says.

Your business’ reputation and general staff morale may also suffer, adds Merrifield.

Prevention first

To prevent these incidents happening in the first place, Merrifield recommends you implement the following:

• A safe and supportive work environment, free from intimidation, insults or aggressive sexual comments and behaviours, where your staff feel confident they can raise their concerns
• Regular meetings with individual employees to help you support their wellbeing and understand what is going on in the business
• An anti-harassment policy for all employees to read and sign in acknowledgement that it has been received and understood
• Additional training on what is and what isn’t acceptable behaviour, and the different forms that it can take
• Greater gender diversity in your recruitment processes, performance management processes and promotions.

For further information, there is a work guide available for sexual harassment in the workplace.

Iwona Tokc-Wilde is a business journalist.