Spotting workplace harassment this Valentine’s Day (and every other day)

Wuthering Heights is the big cinematic release this Valentine’s Day. And while it may be a love story for the ages, we would pity the poor business owner who had to unpick relationships like that within their company.

Many people may be hoping for a love story of their own to blossom this Valentine’s Day, and of course genuine relationships do flourish between colleagues. But it is a good time to highlight the warning signs when innocent overtures overstep the mark and become harassment. After all, it can have major ramifications for your business, including creating a toxicity within your culture and significant legal risk for you.

What constitutes harassment?

In the context of work and employment law, harassment is unwelcome or unwanted behaviour which affects someone’s dignity, or makes them feel intimidated, humiliated or offended and creates a hostile or uncomfortable working environment. Sexual harassment is when this is of a sexual nature.

Harassment can be linked to all the other protected characteristics too, such as race or age.

There is a huge range of behaviours that could be interpreted as harassment or sexual harassment by an individual. It is their interpretation which matters, not the intent of the perpetrator. If it went to tribunal, a judge would determine if the recipient’s interpretation was reasonable). It could be a one-off incident or repeated pattern. Examples are:

· An employee embarrassing a colleague with an over-the-top Valentine’s Day gesture in front of everyone.

· Bombarding a colleague with personal WhatsApp messages.

· Regularly undermining a team member because of a past falling out.

Relationships where there is a significant imbalance of power can often be problematic.

Be mindful that while awareness has certainly risen in recent years, some harassment will have become harder to spot. Trends like remote working and new technologies may take some behaviours out of plain sight.

How can you proactively manage harassment?

Proactively managing harassment has always been a hallmark of a good workplace culture, but since 2024, it has become even more important thanks to the Worker Protection Act.

This requires that you take reasonable steps to prevent harassment and sexual harassment. Shortly, the Employment Rights Act will strengthen this wording further to say “ALL reasonable steps”. Where harassment or sexual harassment is found to have occurred by an employment tribunal, the compensation award can be uplifted by 25% if you did not meet this test of prevention.

So what do reasonable steps look like? Well, there are a number of absolute “must haves”:

· Clear anti-harassment and sexual harassment policies – These should be shared with everyone in the business and sent out as a refresher from time to time.

· Training – Running training sessions which educate staff in this area. Make sure you document who has been trained as part of the process.

· Risk assessments – These will help you identify where staff might be exposed and put measures in place to eliminate or mitigate the risk.

· Clear and confidential reporting routes – Safe ways for victims to disclose harassment.

Make sure you and your managers set the right tone in the business. Lead by example and call out any wrongful behaviour if you witness it yourself. Beyond this, there may be other things that are right for the context of your business. For example, clear signage in public areas warning harassment of staff will not be tolerated.

What should you do if harassment occurs?

Even if you take all reasonable steps, harassment could still occur, and it is important to deal with it quickly and professionally. Your policies will give you the framework to respond. Depending on what’s happened there may be scope to handle it informally to everyone’s satisfaction.

But if this is not sufficient, an investigation will need to be carried out in line with your disciplinary and grievance policies, and depending on the outcome a disciplinary hearing and sanction.

How we can help

Forget Valentine’s Day, this is a key area of employment law 365 days a year and we are here to help. We can draft policies for you, offer eLearning and in-person training sessions and can be on hand to assist with investigations if needed.