Sexual harassment in the workplace is against the law. We look at prevention and how to navigate formal complaints.
Claims of sexual harassment can do serious damage to individuals and practices. CIPD research in 2020
found the #MeToo movement has had a “positive change in employees’ confidence about tackling sexual harassment: a third (33%) feel more confident to challenge it and almost the same proportion (29%) feel more confident to raise a complaint about it”. Worryingly, it also found “almost a quarter (24%) of employees think that challenging issues like bullying and harassment are swept under the carpet in their organisation”.
What is sexual harassmentAnyone can be a victim of sexual harassment. All staff have the right to be treated with dignity and respect in the workplace and are protected by the Equality Act 2010 against sexual harassment at work. This covers all members of the dental team, including self-employed contractors and job applicants. We strongly advise you contact your indemnity team at the earliest opportunity to discuss potential issues, as there may be implications with the GDC.
Sexual harassment is defined as unwanted behaviour of a sexual nature that violates someone's dignity, even if unintentional. This includes creating an intimidating, hostile, degrading, humiliating or offensive environment. It can be a one-off incident or an ongoing pattern of behaviour including time spent in work or socialising outside of work with colleagues.
All allegations must be taken seriously. Practice owners have a duty of care to reasonably protect employees including third-party harassment experienced by self-employed dentists or patients. Failure to meet this duty can lead to a serious employment contract breach, a claim of sexual harassment and constructive dismissal. By not taking action to protect staff, you remain vicariously liable, which has wider impacts on the complainant and can lead to poor performance, absence and even resignation.
Dealing with allegations of sexual harassment can be complex. We can advise you on employment law implications based on the facts of the case and guide you through the process on a step-by-step basis.
Dealing with complaints
Throughout the process, consider offering counselling for the effected employee. This can play a vital role by providing a confidential, yet informal, way to discuss the situation. Professional counselling services should be available in your area, through the employee’s GP or from the NHS Occupational Health Team.
Practice Owners should prevent sexual harassment and treat any allegations seriously, fairly and sensitively. Some complaints can be dealt with on an informal basis where the alleged perpetrator is notified that the behaviour is unacceptable, however, staff members should not be asked to take the informal approach. Staff should be made aware of the Practice Grievance Policy, to decide whether to pursue a formal complaint.
Formal grievancesEmployees may wish to place a formal complaint if the perpetrator’s behaviour persists, or the allegations are deemed serious enough to warrant a formal process to be instigated. In this case, the Practice Grievance Policy should be followed. All parties must be provided with a copy, so the complainant is clear on the procedure. The grievance investigation will consider whether the Practice Bullying and Harassment Policy has been breached. Additionally dental professionals must adhere to the General Dental Council (GDC) code of conduct.
Careful consideration must be given to appointing an investigator who objectively examines the allegations and can have open and sensitive conversations with all parties. We offer a Consultancy Service where we can undertake this role on behalf of our members. The Investigator will collect evidence from the parties, including times, places, events, and those involved in the incidents.
Employees have a legal right to be accompanied by a work colleague or trade union member. However, depending on the nature of the allegation, relaxing your policy and allowing a friend or family member to attend might be necessary. The perpetrator might be defensive about the allegations, denying the behaviour or placing responsibility on the complainant. You will need to consider the feasibility of them attending work whilst the investigation is being conducted.
Following any meeting, those questioned should have the opportunity to check the accuracy of the notes and make any changes if they believe them incorrect. Once true representation of what was discussed is agreed, they sign and date the note. Once all necessary information is collected, we recommend presenting the findings in a report to assist you in deciding whether to uphold the grievance. You will need to write to the complainant and the perpetrator, explaining the outcome and justify your decision. If the grievance finds sexual harassment has occurred, a disciplinary process against the perpetrator needs to be initiated.
If the perpetrator is a self-employed associate, this is a fundamental breach of contract, allowing you to terminate their associateship with immediate effect. If they are a patient, you will need to consider removing them from your list for an irrevocable breakdown in the patient-practice relationship.
Breaching GDC standards
When concerns are raised about crossing a professional boundary, the GDC registrar may refer the concern to the Interim Orders Committee for consideration of whether an interim order should be imposed, pending final determination of a matter by the GDC.
The IOC conducts a risk assessment rather than a fact finding process. The committee needs to be satisfied that an Order is necessary for the protection of the public, is otherwise in the public interest; or the interests of the person concerned. The regulator takes the view that inappropriate behaviour involving crossing of professional boundaries, can be seen as grooming for a potential relationship. It will also consider whether there is a position of power difference between the perpetrator and the accuser.
The IOC will decide if there is a risk of harm to the public whilst the concerns are investigated. They are likely to make an Order even without clinical concerns. The GDC will consider if any harm has been caused to the public (including colleagues and patients), whether it is physical, emotional, mental and/or a violation of sexual dignity or boundaries. They will also consider if the allegations will damage the public confidence in the profession, and any previous history or known allegations of a similar nature.
The GDC takes crossing professional boundaries extremely seriously. All inappropriate behaviours found to be true, breach several fundamental GDC standards. Any form of sexual harassment in the workplace is regarded as wholly unacceptable.
Practice Owners and Managers must try to recognise underlying tensions or inappropriate behaviours as quickly as possible. It's in the interest of the practice and profession to eradicate sexual discrimination in the workplace, so that everyone can work in safe environment of mutual respect. Sabina MirzaPractice Management ConsultantClare LawrenceDento-Legal Advisor