Bluntly, if I harass someone, it is my wrongdoing. All good employment contracts and policies will prohibit harassment, whether directly or by implication.
Sexual harassment law:
And, though the UK employment tribunals otherwise deal almost exclusively in claims against employers, the law does allow tribunal claims to be made directly against individuals in respect of their harassment of colleagues in the course of employment.
So what responsibility does an organisation bear to prevent harassment of its people?
Many of us would agree that employers hold ethnical duties to ensure a working environment in which all of their people are safe and free from harassment.
Indeed, it is well established that employers are legally responsible for harassment committed by their employees in the course of their employment – which goes far beyond just when they are sitting at their desks.
Employers can avoid legal liability only if they have taken all reasonable steps to prevent harassment and this is a high hurdle.
This, of course, falls short of an express duty to prevent harassment – it is more carrot than stick – though this looks set to change by way of new proposed legislation currently making its way through Parliament.
What about the HR director, chief people officer or equivalent? A judge in Delaware recently held that shareholders could directly sue an organisation's chief people officer for failure to attempt to prevent sexual harassment at the company.
Though that particular claim is US (indeed Delaware) specific, could an analogous argument be made here in the UK that HRDs hold particular responsibilities to prevent harassment by dint of their role and expertise?
Potentially, yes though it would always be fact specific. There will certainly be situations where a person has so failed in their role - perhaps by covering up harassment or failing to properly investigate serious complaints made - that there may be cause for discipline and even dismissal.
But if an organisation genuinely wants to eradicate harassment and discrimination in a sustainable and human-focussed way, as opposed to merely limiting potential legal exposure, in a compliance focussed way, then holding one person, even if they are the chief people officer, solely responsible for a toxic work culture could actually be counter-productive.
The ability for any one person to create and sustain a healthy workplace culture is limited – particularly if that person does not also have the resource, influence and permission to effect the behavioural and structural changes needed to achieve this.
Moreover, culture is the responsibility of everyone in an organisation and is driven by leadership – on that analysis, one could just as easily make a case that the CEO or Chairperson should hold ultimate accountability for workplace harassment occurring on their watch.
Whatever any business determines is their appropriate roster of accountability and responsibility – the question is and will remain a critical one.
The Delaware case resonates with us here in the UK because we too are seeing a marked increase in shareholder and investor focus on facets of organisational performance beyond pure profit.
Sustaining a healthy workplace culture is a key pillar under the ESG umbrella - an increasingly critical focus for shareholders, investors, regulators, customers, talent and, ultimately, the law.
Kelly Thomson is a partner at law firm RPC