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22nd May 2019

Lauren Anderson, HR consultant and principal investigator at By Design Group discusses how ‘out of hours’ is no excuse for unwanted attention from colleagues

Jim Hodkinson, 56, a married man with grandchildren, and the chief executive of the New Look clothing chain was not the first and will not be the last to get the sack for not understanding the rules and regulations around behaviour “out of hours”. A few years ago, he groped a female member of staff at an industry awards dinner and offended another with an inappropriate comment, leading to questions about conduct outside of main office hours.

Employers need to be on the alert for any such conduct that may not necessarily be carried out in work time but might be said to be work-related – Xmas parties; corporate events, even work outings arranged by a group of colleagues not necessarily related to work.

In what at the time was believed to be the first case of anyone with such a high position being publicly dismissed for inappropriate sexual behaviour- it’s interesting to read his reaction to the allegations, and to note that after legal proceeding, the board of New Look agreed to honour his contract, giving him a year’s salary, bonus and pension as a pay-off, worth about £600,000. Here’s what he said:

• He admitted he had touched a girl’s bottom and said, “nice arse”.

• He admitted he had made inappropriate suggestions to another girl but after 11.30 pm when he had been drinking.

• He insisted he had been guilty of no more than “tomfoolery” “a very minor offence”.

Thankfully, the company disagreed, and he lost his £1m a year job. But how many businesses are still unaware of what constitutes sexual harassment and that out of hours is still work-related?

What constitutes sexual harassment and unwanted attention?

Sexual harassment in the workplace is not a new phenomenon but one that has largely gone unchecked for decades causing untold damage to individual employees and the places in which they work.

Even the simplest things in an office environment can lead to grievances, sickness absence, a tense working environment, low morale and decreased productivity. But how and when that becomes bullying and/or harassment is a worry for most employers.

What starts as innocent employee behaviour such as office banter, light-hearted teasing, jokes and good-natured squabbles about football team allegiances, musical tastes or curious clothing choices can quickly turn sour. Aside from the legal consequences, if office banter is unwelcomed and upsetting to some employees it can lead to whole host of issues and result in staff leaving which means more work for HR and recruitment teams.

ACAS’ Sexual harassment is defined as: “any unwanted behaviour of a sexual nature which has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment”.

What is clear in this definition is that the behaviour is “unwanted”. Using the ‘banter’ example again, if a worker engages in similar banter it is difficult for them to raise a complaint, but if the banter crosses a line and causes obvious distress to a worker then it can become bullying or harassment.

The potential legal consequences for an employer should be taken seriously. An employee who suffers bullying and/or harassment may resign and claim constructive dismissal, relying on a breach of the implied term of trust and confidence and the employer’s obligation to ensure the employee has a conducive working environment.

How do you spot the signs?

Some of these behaviours are obvious to spot and go on in plain sight. These include:

• Sexual comments or jokes – in person or via e-mail.

• Office banter.

• Inappropriate touching such as pinching, patting or hugging.

• Unwelcome sexual advances or other forms of sexual assault.

• Staring in a sexually suggestive manner; wolf whistling.

• Displaying images of a sexual or pornographic nature- topless calendars or offensive pictures.

• Being victimised or treated as less favourably for rejecting advances.

• Invading someone’s personal space causing them discomfort. • Groping.

Some forms of sexual harassment happen “under the radar” though and these situations can be very difficult to spot if the victim doesn’t say anything or make an official complaint. Managers can be alerted to changes in behaviour- former outgoing employees appearing withdrawn/not wishing to socialise with colleagues where they were once very engaged in social activities within the business. In such cases it is very unlikely they will not have confided in someone (another close work colleague).

What to avoid doing if such incidents occur?

Mistake 1:

• The victim has not made a formal complaint so there is nothing the business can do about it. WRONG! The employer has duties under H&S legislation to ensure there is a safe working environment for its employees. If it is clear something is going on there is a duty to investigate.

Mistake 2:

• If it’s a case of one word against another the employer is unable to take any action. WRONG- our experience shows that there is very often similar fact evidence that can assist the employer and the employer has to consider all of the circumstances when weighing up whether the allegations are true; including motivation of either party; the surrounding evidence and build up a picture in order to decide whether it is more likely than not the allegations are true. The burden of proof is not criminal (beyond reasonable doubt); it is civil – on the balance of probabilities (51%).

Mistake 3:

• Underestimating the impact on the feelings of the victim and trivialising the incidents complained of – like the New Look boss. The fundamental consideration in these cases is the impact it makes on the victim. The impact Is not mild – causes fear; unwillingness to speak out and draw even more attention to themselves. Reduces the likelihood of performing well and so reducing chances of career progression. It can cause severe stress and lead to mental health breakdowns in severe cases.