Examples of toxic workplace culture have been thrust into the limelight over the past year with many high-profile examples being reported in the media. Most recently, there have been claims that women have been groped, propositioned and touched repeatedly by male colleagues at the Ministry of Defence. This is in addition to Dominic Raab’s purportedly “harsh” management style and allegations of sexual harassment and assault against individuals at the CBI. These examples, unfortunately, highlight how widespread and common these issues are.

In practice, the media attention surrounding the MOD, Whitehall and the CBI may indeed provoke more internal debate about what constitutes bullying and harassment in the workplace. In this article, Michelle Last outlines the current employment law on bullying and harassment and explains what employers should do to seek to prevent such behaviour at work.

What constitutes sexual harassment in the workplace?

Sexual harassment occurs where the perpetrator engages in unwanted conduct of a sexual nature and that conduct has the purpose or effect of either violating the victim’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that victim.

Sexual harassment or assault at work is never acceptable and employers should take a zero-tolerance approach. Unfortunately, too many employers fail to take proper action, meaning victims either must carry on working with the perpetrator or leave their job. The effect of a failure to act is catastrophic for the victim employee, who suffers the harassment and/or assault and then the serious injustice of an employer that fails to protect them and address what has happened.

The inactive employer ultimately pays a price too. They could be seen as colluding in covering up sexual harassment and assault, resulting in serious reputational damage, departing employees and potential Employment Tribunal and personal injury claims. It is imperative that companies have policies in place to handle sexual harassment and assault claims properly and all senior staff must be fully trained on what the appropriate procedure is in such circumstances.

Sexual harassment and sexual assault may also be a crime, and allegations of this nature may also therefore be reported to the police. However, any internal processes can be carried out independent of any criminal investigation. Employers are not subject to the same burden of proof as in criminal cases and so should be expected to properly investigate and deal with allegations of sexual harassment and assault in the workplace.

Is bullying in the workplace protected against in law?

There is no legal definition of “bullying” in employment law. However, it is typically characterised as repeated, unwanted behaviour which is physically or mentally abusive of another person. It can include, by way of example, negative performance feedback, refusal to engage, hostility in meetings and in front of colleagues, and failure to promote.

The distinction between what is bullying or harassment and what is direct critical feedback can be a fine one. It can be difficult for managers to be effective in this modern age, when any constructive feedback at all might be construed as negative. That is not to say that leaders in high positions must frequently be harsh to improve performance. There are enough studies that show how effective leadership styles can improve performance in the workplace. Unfortunately, many mid-managers are not well supported and so may not have the skills to be able to deliver feedback in a constructive, optimum way. Ultimately, if someone’s performance or conduct is failing, that message must be delivered and clearly, to ensure the employee is aware of the situation they are in and that it must be turned around.

What are the ramifications for employers?

People who are subjected to sexual harassment, sexual assault, and/or bullying at work may seek justice in some form or another and employers that fail to act do so at their peril.

Sexual assault cases are particularly serious and must be treated as such.

Employment law has failed to keep up with the increasing levels of sexual assault we are seeing in the workplace and this has caused some employers to fail to deal with issues when they arise. For this reason, employers should be subject to a statutory code of conduct that requires them to immediately suspend any employee accused of sexual harassment or sexual assault at work.

Some employers fear taking action in case allegations of sexual harassment are false. However, if an alleged perpetrator is wrongly accused, the employer can take disciplinary action against the complainant, up to and including dismissal. The alleged perpetrator could also potentially commence civil proceedings against the complainant for defamation. However, the reality is that the substantial legal costs associated with bringing a claim for defamation generally deter most potential litigants.

Who is responsible for changing a toxic workplace?

Toxic behaviour thrives in places where it is permitted within its culture. Whilst the old adage “culture starts at the top” remains true, often culture is the responsibility of a management team rather than one person. If sexual misconduct and bullying behaviour is rife within a business, we must look to the senior management team first.

When businesses thrive, senior management expect financial rewards for having overseen that success. The corollary must surely be that when a business is revealed to have such a toxic workplace that cultural rehabilitation is required, senior management should pay the price. Otherwise, senior management continues to reap all the benefits of their success without being held accountable. Unless, and until, the senior management is held responsible for the actions of those reporting into them, they will have no real vested interest in stamping out such behaviour in the workplace.

If you are concerned about your workplace culture or if you have been a victim of sexual harassment, and/or assault, and/or bullying in the workplace, please contact Michelle Last.

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This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.