The CBI scandal and workplace sexual misconduct: lessons for employers

David Miers looks at the CBI scandal in detail and what the law says on sexual misconduct in the workplace

Since March, the Confederation of British Industry (CBI) has been embroiled in a sexual misconduct scandal of seismic proportions. Beginning with the Guardian reporting on a sexual harassment complaint made against CBI director-general Tony Danker, who was subsequently dismissed, more than a dozen current and recent female CBI employees have alleged that they’ve been victims of sexual misconduct.

The CBI has appointed law firm Fox Williams to carry out an independent investigation into the allegations, and has subsequently suspended three employees pending the outcome of the investigation. Numerous companies have cut ties with the CBI as a result of the debacle, including the likes of NatWest, John Lewis and BMW, with many others — Barclays, Asda and Meta among them — pausing activities with the group.

Unfortunately, sexual misconduct in the workplace is a massive issue in the UK, with four percent of employees saying they have been sexually harassed at work in the last three years. With almost a quarter (24 percent) believing issues like bullying and harassment are ignored by their employers, it’s clear that a lot more needs to be done.

The CBI scandal: where things went wrong

Brian McBride, the president of CBI, has set out some of the organisation’s main shortcomings in dealing with and preventing sexual misconduct, including:

• There were a few occasions where senior leadership members knew of allegations, yet no action was taken;
• The CBI tried to resolve sexual harassment cases instead of removing those offenders from the business;
• The organisation failed to properly onboard staff, while some of its managers were promoted too quickly without the required training to protect the CBI’s cultural values, or to effectively react when those values were compromised;
• In assessing performance, the group prioritised competence over behaviour; and
• The CBI’s HR function was not represented at board level, which reduced escalation paths to senior levels of the company.

Sexual misconduct in the workplace: what the law says

Sexual harassment in the workplace is against the law and refers to unwanted behaviour of a sexual nature. The law protects the following types of individuals against sexual harassment at work:

• Employees and workers;
• Contractors and self-employed workers; and
• Job applicants.

To be deemed sexual harassment, this unwanted behaviour must either:

• Violate someone's dignity, whether intentionally or not;
• Create an intimidating, hostile, degrading, humiliating or offensive environment for them, whether intentionally or not.

Organisations can be vicariously liable for any sexual harassment that occurs, while they also have a duty of care to safeguard the wellbeing of their employees. If an employer fails to do this, it could lead to a serious breach of an employee’s employment contract. Should an employee feel like they are forced to resign because of this, the employer could face a claim of sexual harassment, constructive dismissal and even personal injury in the most serious of cases.

What businesses can learn from the CBI scandal

As demonstrated above, the CBI evidently didn’t take sufficient steps to protect employees from sexual misconduct. In order to do so and avoid liability should such cases unfortunately still arise, employers must do all they reasonably can to protect staff from sexual harassment, and take steps to prevent it from happening. This involves implementing a zero-tolerance policy, which should include the following steps:

• Removing or reducing risks of sexual harassment to ensure the workplace is safe;
• Providing support to anybody involved in a sexual harassment complaint;
• Making it clear to every employee, as well as those using a company’s services, that the business will not tolerate sexual harassment;
• Training staff to recognise sexual harassment and encouraging them to report it; and
• Ensuring all of these policies are consistent with having zero tolerance of sexual harassment.

While the outcome of the investigation into the exact nature of the CBI sexual misconduct scandal is still pending, what’s emerged so far seems pretty damning. The organisation appears to have failed to prevent a culture of sexual misconduct from spreading, resulting in a number of incidents of sexual harassment — and worse. By following the steps outlined above, businesses can avoid a similar culture pervading in their own workplaces, ensuring they are safe places to be, while also safeguarding themselves from legal liability.

David Miers is a consultant solicitor at Setfords Solicitors
setfords.co.uk