#MeToo #WhatNext?

Eighteen months since the Harvey Weinstein allegations burst onto the front pages and the #MeToo movement was launched, it is clear that the issue of sexual harassment in the workplace is not going to disappear from the headlines any time soon. In that time, women and men from all walks of life have come forward to speak about their experiences of sexual harassment and assault. It is likely that many more remain silent. The financial services sector is certainly not immune, although we have yet to see the number of headline-grabbing stories in finance that we have seen in certain other industries.

Recommendations have been made by both the Equality and Human Rights Commission and the House of Commons Women and Equalities Select Committee suggesting changes to the law in this area. The Government’s response to those recommendations, published in December 2018, indicates some support for making changes which are likely to include the introduction of a statutory code of conduct and a strengthening of the law around protection from third party harassment. However, unless and until Brexit is finalised the government has significant and time-consuming other priorities and immediate legislative change is unlikely. In the meantime, organisations should be considering what steps they can take to prevent sexual harassment and to deal with it when it occurs.

Preparation is key

Allegations of sexual harassment can have a devastating impact on a business’s reputation as well as on staff morale and can also have serious legal and regulatory consequences for an organisation. It is vital for employers to be prepared. All too often, employers are caught off guard and the response is reactive and panicked. Advance planning will put an organisation on the front foot and should be prioritised by management even where there are no apparent issues. This doesn’t just mean having robust internal policies, but also ensuring that staff on the front line of reports and investigations are properly trained and equipped to deal with the situation and that internal and external communication strategies have been considered.

Risk assessments

Organisations should identify particular risk areas. Long hours and frequent social/networking events with colleagues and clients where alcohol is consumed are key flashpoints. Common triggers also include close working and business travel between colleagues where there is an imbalance of power.

Ensure clear reporting lines

Victims of sexual harassment are often reluctant to come forward – afraid of retaliatory action and concerned about the impact speaking up may have on their careers. Organisations need clear and effective reporting procedures and victims should feel confident that they will not suffer any negative impact from making a report. Appointing and training a sexual harassment reporting officer from senior management as a single point of contact and accountability can assist with this.

Awareness and understanding

Having effective policies and procedures is all very well but if no one knows about them, their impact is limited. Organisations should provide information to staff, including to contractors and other third parties, about what harassment is and how to report it. It should be made clear that all complaints will be treated seriously. Proper and regular training should be provided – not just as a tick box exercise, but as a meaningful learning experience for all staff, including managers. If staff need encouragement to attend such sessions, it’s worth reminding them that there is potentially individual liability for employees in discrimination claims. Those who are witness to inappropriate behaviour, as well as those who are otherwise aware of them, should be encouraged to come forward to ensure that the onus to report does not always fall on victims.

Support for staff

When allegations are made it can be extremely stressful – not just for the victim, but also for the accused and for others who may have witnessed incidents. Businesses should consider offering counselling and other support to all parties – and should remember that nothing is proven until an investigation has been concluded.

Non-disclosure agreements

One of the areas which has received significant publicity since #metoo is the use of confidentiality provisions (or “NDAs”) when settling claims of sexual harassment. The use of so-called “gagging clauses” is common – and can in some circumstances work well for both parties (as well as for those wrongly accused of harassment). But they should not be used as a way of covering up criminal activity – and those entering into such arrangements need to have a clear understanding of their limitations.

Cultural change

Attitudes to sexual harassment have certainly changed – and continue to do so. Behaviour that was once accepted (if not acceptable) is now being challenged.  But we still have some way to go before we can claim that sexual harassment has been eradicated from our workplaces – and that is certainly something for all businesses to aim towards.

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