Sexual Harassment at Work

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Guidance on Sexual harassment in the workplace and COVID-19

RoW are concerned that women will still experience sexual harassment, harassment based on sex and sex discrimination while Working from Home (WFH) or working on the frontline as a key worker.

This guidance answers some of our FAQs and gives some practical steps you can take to protect themselves from harassment, as well as advice on what you can do if they do experience harassment or discrimination at work.

I am being sexually harassed or discriminated against while WFH, what can I do?

Your employer’s responsibilities

  • We know as more and more women are required to WFH during the COVID-19 lockdown, some remain at risk of sexual harassment. This can take the form of cyber harassment either online, by text, telephone or on social media, for example on technology platforms such as Microsoft Teams, Slack and Zoom.
  • Your employer is obligated to protect you from sexual harassment, even whilst WFH, read about these obligations here on the Acas website.  Internal anti-sexual harassment policies should be updated to incorporate the risks of sexual harassment whilst WFH.
  • If you are experiencing harassment online ‘Fix The Glitch’ has some resources.
  • If you are concerned about your personal safety consult the Suzy Lamplugh Trust ‘Guidance for employers and employees to Stay Safe at Work’ here.
  • If you do experience sexual harassment whilst WFH, keep a thorough record of the harassment or discrimination, file the emails, and take pictures or screenshots of all the communications.
  • Many video chat platforms enable you to record conversations, and we encourage you to do so. Here are how to record meetings on Zoom and Microsoft Teams.
  • In the same way as if you were in the workplace, your first port of call if you experience harassment at work is to speak to your line manager or HR department (if you have one) to explain what has happened and ask them to take steps to stop the harassment.
  • If you raise a grievance to your employer about sexual harassment you have experienced, even during this time, they still are required to follow the Acas guide on grievances which can be found here from page 47.
  • Make sure that your employer is aware that there are two steps needed to deal with the harassment:
    • Step 1 is to stop it in the immediate, short time whilst the workforce is WFH, and
    • Step 2 is to ensure that the harassment does not continue in person when everyone is back in the office.

Safeguarding

  • We advise that where possible, you use forms of online communication which can be monitored by employers and insist on using these pre-approved forms of communications when communicating with colleagues.
  • If the platform you are using allows you to choose a background, make use of this feature so that your colleagues cannot see your home. If it does not allow for this feature, then try to attend video calls only communal spaces like kitchen/living room/dining room to protect your privacy.
  • Keep regular working hours and avoid logging on in the evenings or on weekends.
  • Do not feel that you must answer every call. If someone is making you feel uncomfortable then that behaviour is unacceptable, and you are entitled to end the call immediately.
  • Make use of the “blocking” function outside of working hours to stop your harasser contacting you.
  • If your harasser has your personal contact details like your address or phone number and you are worried about your safety consult the Suzy Lamplugh Trust ‘Guidance for employers and employees to Stay Safe at Work’ here.  
  • Check in with your colleagues regularly and if you must speak to your harasser for work purposes, then try and do so on a group call/video situation.
I am being sexually harassed/discriminated against while on furlough leave. What can I do?

  • Your employment continues whilst on furlough leave, and your employer has the same obligations towards you, including preventing you from being harassed.
  • You are not permitted to do any work for your employer whilst on furlough leave. This includes “making money” for your employer or “providing services” to your employer. Therefore, there should be very few valid reasons why your colleagues need to contact you. If you do not feel comfortable speaking to someone, do not answer the phone.
  • If you are continually being called/emailed by a colleague, block their number and at the same time write to HR or you line manager to explain what you have done and why you have done it.
  • Keep a record of everything that is said and done to you and what impact it has on you.
  • Again, if you are experiencing harassment you should first speak to your line manager or HR – note that this should be someone who is not on furlough leave as dealing with your complaint of harassment will probably count as providing services to the employer.
I have an ongoing sexual harassment complaint with my employer, my grievance or investigation is being delayed because of the crisis, what can I do?

  • The law and Acas Code of Practice on disciplinary and grievance procedures still apply during the COVID-19 pandemic. This includes while social distancing and lockdown measures are in place.
  • Your employer must not use the crisis as a reason not to continue the grievance process. Read the Acas guidance on how employers should be conducting grievances during the pandemic here.
  • Since there are tight deadlines for bringing discrimination and harassment claims, your employer must act promptly when dealing with a sexual harassment complaint. If necessary, remind your employer that they must still follow the Acas guide on grievances here at page 37. Employers must also conduct investigations about sexual harassment investigations fairly following the Acas guide on investigations, which can be found here.
  • If, for example, the person who has been assigned your complaint has been furloughed, unwell or not working for whatever, your employer should assign you a new point of contact to deal with your complaint.
  • Any meetings or investigations should still be facilitated online and without delay.

The Right to be Accompanied

  • You still have the right to be accompanied by a companion at a grievance meeting or sometimes known as a ‘hearing’, which should be facilitated with online methods.
  • Your chosen companion must be allowed to put and sum up your case for the grievance, response on your behalf to anything said and talk privately with you at any point.
  • If your companion is unable to attend at the time or date of the hearing, the you have the right to suggest another time and date which is reasonable and not more than 5 working days after the original date.
  • As during the pandemic, the availability of your chosen companion might be more limited, your employer should consider if a delay of more than 5 days is reasonable in the circumstances.
  • Read more about your right to be accompanied in the Acas guide here from page 47 and the updated COVID-19 here.

Furloughed colleagues

  • Even if they are on furlough, your colleagues who are union or non-union representatives can accompany you to a meeting.
  • Someone on furlough can take part in a disciplinary or grievance investigation or hearing, including if they:
    • are under investigation in a disciplinary procedure
    • raised a grievance
    • are chairing a disciplinary or grievance hearing
    • are taking notes at a hearing or during an investigation interview
    • are being interviewed as part of an investigation
    • are a witness at a hearing
    • are an employee’s companion for a hearing
  • If your workplace is still open, your employer should carry out the grievance procedure in line with public health guidelines. Interviews and meetings should be held in a place that safely allows for social distancing as well as privacy.
  • If people are working from home, employers have been advised that to decide if the procedure can still be carried out in a fair and reasonable way by considering:
    • the individual circumstances and sensitivity of the case, for example if it needs to be dealt with urgently, or if it would be dealt with more fairly when people are able to return to the workplace
    • if anyone involved has a reasonable objection to the procedure going ahead at this time

Video meetings

  • Acas states that for most video disciplinary or grievance meetings, ‘there will be no reason to record the meeting’ unless there is a ‘good reason’. If your employer does not or will not facilitate a note taker for the meeting you suggest that request any relevant meetings be recorded.
I do not feel safe to continue working, do I have a right to WFH? What are my employer’s obligations?

  • The Government has issued guidance instructing people to WFH wherever possible, especially those who are categorised as “high risk” of contracting coronavirus, a list of those people can be found here.
  • Most people who ordinarily work in offices should now be WFH.
  • If your employer is insisting that you do continue to attend the workplace, and you feel that you are able to WFH, we set out below some avenues you can make use of so that you can WFH.
  • In all instances, you should tell your employer that one of the reasons you are asking to WFH is because you do not feel safe attending the workplace due to the harassment you are experiencing.
  • If you are not able to perform your job from home, you should follow the procedure set out in your employer’s policy on the prevention of harassment. If there is not a policy, you should speak to your line manager or HR about your concerns.

Flexible working requests

  • All employees have the right to make a flexible working request. You can make a flexible working request to your employer to WFH and they must act reasonably when considering that request.
  • Information about flexible working requests can be found on the Acas website here.
  • You can learn how to apply for flexible working on the Gov.uk website here.

Health and safety:

  • COVID-19 poses a health risk to employees, especially frontline workers without adequate personal protection equipment (PPE). Under s44 and s100 Employment Rights Act employees are protected against detriment and dismissal, in cases involving health and safety concerns.
  • Note this protection only applies to ’employees’ and not ‘workers’, you seek legal advice on what your employment status is. 

Underlying health conditions:

  • If you have an underlying health condition and your employer is refusing to let you WFH, you may be able to claim for disability discrimination if your employer refuses to make any reasonably adjustments for you, including WFH if it is possible for you to do so.

Pregnant employees and workers:

  • If you are pregnant and have been advised to self-isolate but are being instructed to still go to work, you can find advice here from Maternity Action on what to do.

Raising a grievance:

  • You can raise a grievance against your employer if they refuse to let you WFH. Details of how to bring a workplace grievance can be found here.
  • An example template of a grievance letter to an employer can be found here on the Acas website.
I have been sexually harassed at work but and my employer has told me that my employment is being terminated because of COVID-19, what should I do?

  • During your notice period you can still raise a grievance against your employer in respect of the harassment you have suffered. However, once your employment terminates some employers may argue they do not have obligation to investigate the grievances of former employers. Your employer’s grievance process should set out their position on this point.  
  • An employer can still hold an investigation about your complaint, even after your employment has terminated.
  • You can still lodge an employment tribunal claim in respect of the harassment you have suffered. If you think that you have been selected for dismissal because of something related to the harassment you have suffered, you may be able to claim compensation for loss of earnings suffered because of your dismissal.
  • If, however, your dismissal is unrelated to the harassment (for example if your whole team has been dismissed) the compensation you can recover will be limited to the losses you have suffered that are directly linked to the harassment plus an injury to feelings award.
  • NB: the time limit to start the Employment Tribunal process is usually three months less one day from the last act of harassment or discrimination. The first step is to commence the Acas Early Conciliation process, which can be done here.

I am a key worker, what protections should my employer be taking to protect me from sexual harassment?

  • Under the Health and Safety at Work Act 1974 there is a general duty on all employers to ensure, so far as is reasonably practicable and health, safety and welfare of all employees at work.
  • Employers should make a risk-assessments for any work-related sexual violence; this includes lone working and for stress and mental health. This applies to WFH too.
  • For more information on employers responsibilities see the Health and Safety Executive website here.

I am concerned I will lose earnings or my job during this crisis. Where can I find advice?

  • It is unlawful for an employer to impost a pay cut on you without seeking your agreement first. If they do, you may be able to bring a claim for breach of contract or unlawful deduction from wages. However, given the circumstances of this crisis we encourage employees to try and reach agreement with their employer about any changes to pay, benefits and working hours.
  • It is an unlawful act of discrimination for an employer to dismiss you, reduce your pay or subject you to any other form of detriment because you are a woman or because you have complained about sexual harassment. 
  • If you have any questions about your pay entitlement, statutory sick pay we suggest looking at the Money Advice Service help webpage here.
  • The Great London Authority had an employment rights hubs that is updated with information that may be helpful here.
  • Information about the government’s COVID-19 Job Retention Scheme can be found here. This scheme has been introduced by the government to try and avoid employees being dismissed.
  • If your employer takes steps to terminate your employment you should ask whether they have considered using the Job Retention Scheme as an alternative to dismissal.
  • For information about what benefits you may be entitled to check here.

What can I expect from Acas during this crisis?

  • Read the Acas guidance on how employers should be conducting grievances during the pandemic here.
  • The Acas Early Conciliation process is mandatory step that employees must take before issuing claims to the Employment Tribunal and usually must be done within three months less one day of the last incident of harassment/discrimination.
  • There has been no indication that this time limit will be extended in light of the pandemic, therefore we advise that you contact Acas about your employment issue as soon as possible by phoning 0300 123 1100.

My sexual harassment claim is at the Employment Tribunal, how is the crisis impacting the Employment Tribunal?

  • The Employment Tribunal in England, Wales and Scotland have published a page of FAQs arising from the Covid-19 pandemic which can be found here.
  • All parties must still comply with Case Management Orders. It is worth considering how the crisis may make it harder to handle emails and calls, which may impact applications to the Employment Tribunal made by parties e.g. postponements of hearings, extension of deadlines etc. This is also the case for communications made by post and those with limited access to printing facilities.
  • On the 25th March 2020, the Employment Tribunal announced that in light of the latest Government measures to combat the COVID-19 pandemic, the Employment Appeal Tribunal will not be in a position to hold any hearings in the immediate short term and will be operationally severely restricted for the time being, read more here.

Resources

ROW’s recommendations

  1. RoW is calling for the Employment Tribunals to extend the time limit to at least six months to bring claims during the crisis, which will make investigations into complaints of sexual harassment longer and slower. We are calling the Government to extend the time limit to six months during the crisis, so women who have experienced discriminated or harassment will not be disadvantaged.
  2. RoW are calling on the Employment Tribunal to use technology to conduct substantive hearings by telephone or video link to avoid delays in accessing to justice.
  3. Employers must update their internal anti-sexual harassment policies accordingly and consider the risk and on women of discrimination and harassment, due to the requirement to work from home and working in different or adjusted work patterns. This includes issuing employees means of technology that can be either recorded or monitored by employers including employees’ communications by phone, emails, and virtual meetings.
  4. Employers must update their grievances and investigation processes for sexual harassment complaints, using technology where necessary to carry out meetings and to not let employees who WFH or self-isolating be obstructed by the crisis or unnecessarily pause or delay processes.
  5. Employers must not delay Settlement Agreements negotiations unless requested by the woman.
  6. Employers must reassess the health and safety of their women-employees and workers, particularly women who experiencing domestic abuse.
  7. RoW is concerned that women will be disproportionately impacted by lay-offs and redundancies and that women will be discriminated against, especially those with children or disabilities. Steps should be taken to ensure that decisions of this nature are fair across the workforce.
  8. The NHS has recruited 750,000 volunteers to the assist during the crisis, but currently volunteers do not have the same protections as employees and workers from sexual harassment. Proper insurances protections must be put in place to give them adequate legal protections. We are also concerned about medical students who are being asked to work on the frontline during the crisis are can be vulnerable to sexual harassment. It is vital to ensure they too have proper protections from harassment in the workplace.

Published May 2020

Deeba Syed, Rights of Women and Clare Taylor, BDBF

 

 
 
 

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