Accountancy firm EY recently hit the headlines for allowing a partner to remain in post after he directed sexual comments at a junior employee on a company skiing trip. Zahra Mahmood looks at the implications for EY and outlines what other firms can learn.
It should come as no surprise to learn that EY came under fire from its own workforce following a decision to allow a partner to remain in employment despite a professional disciplinary tribunal finding him guilty of misconduct for sexually harassing a junior employee.
The internal upheaval was expected and the partner has now resigned following the backlash.
However EY, through its initial decision to retain him even after the tribunal described his behaviour as “obscene and aggressive”, has now run the risk of effectively implying that it tolerates such behaviour; behaviour that women and men across the globe have been trying to ‘out’ so that employers recognise and deal with the issue of sexual harassment in the workplace.
For organisations to stamp out any culture of discrimination, they must be seen to be taking a stance and sending their staff the right message. With a partner acting as he did, what message did that send?
#MeToo
Sexual harassment in the workplace has been widely reported in the news in recent times – the major catalyst for this being in 2018 with allegations surfacing around Harvey Weinstein in Hollywood. It became a widespread phenomenon across social media with women sharing their own experiences of sexual harassment at work using #MeToo.
Sexual harassment
Employers to be liable if they don’t prevent sexual harassment
The decision by EY to retain the partner following his deeply offensive and degrading comments to a junior employee may unfortunately have a negative impact on others who may be subjected to sexual harassment. They may feel discouraged from coming forward to speak about the experiences they have had in the workplace because of the fear that no real action would be taken, and this might mean that it continues.
One of the main challenges EY now faces is how it handles similar issues in the future and what sanctions it applies to future perpetrators. The firm has announced it is setting up a new ethics oversight committee and is reviewing its disciplinary processes. But it would appear grossly unfair if, for example, a junior employee sexually harassed another colleague, is found guilty of gross misconduct, and is then dismissed.
The decision by EY to retain the partner following his deeply offensive and degrading comments to a junior employee may unfortunately have a negative impact on others who may be subjected to sexual harassment.”
Consistency and fairness are important, and employers are generally required to treat similar conduct in a similar way. If employers do not treat similar issues consistently, they will need to be prepared to justify the differential treatment when faced with an employment tribunal claim and EY now could face that risk.
It is also surprising to learn that this is in fact not the first time that EY has faced a sexual harassment complaint. Albeit the complaint was raised in the firms’ North Carolina office; it does suggest that there is a clear firm wide issue that needs to be tackled.
Preventing harassment
Appropriate steps should be taken to prevent sexual harassment in the workplace, starting with a zero-tolerance approach.
Employers can be vicariously liable under the Equality Act 2010 for sexual harassment committed by employees during the course of their employment. However, they can defend a sexual harassment claim on the basis that they took ‘all reasonable steps’ to protect their staff. This includes (the list is not exhaustive):
- Implementing an anti-harassment policy that is communicated to workers, monitored and reviewed
- Implementing an appropriate procedure for reporting harassment, protecting victims and taking action
- Training staff on a regular basis on equal opportunities and harassment issues
- Taking steps to deal with complaints and taking appropriate disciplinary action against harassers
- Taking a consistent approach to dealing with such complaints.
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EY’s actions in dealing with this most recent allegation could backfire and employers therefore need to ensure from the top that there is a culture of non-discrimination and they deal with any such allegations in a firm, fair but consistent manner from the outset.
