Sexual Harassment in the Workplace

Introduction
In recent weeks, few areas of public life have been untouched by the vast number of complaints about inappropriate sexual behaviour by public figures. Online, thousands have engaged in the #metoo campaign to highlight their own experiences of sexual harassment, reflecting a recent BBC 5 live poll which found that 53% of women and 20% of men surveyed had been subjected to some form of sexual harassment at work or whilst studying.

Protection under the Equality Act 2010
The Equality Act 2010 (‘the Act’) prohibits sexual harassment and less favourable treatment of a worker because they have submitted to or rejected sexual harassment.

Sexual harassment is defined in the Act as occurring where person A engages in unwanted conduct of a sexual nature and this conduct has the purpose or effect of either violating person B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for person B. Examples of such conduct include making unwanted sexual advances or touching, sexist jokes, or displaying pictures or objects with sexual overtones.

When determining if the conduct had such an effect, the tribunal will consider B’s perception of the situation, the circumstances of the case (e.g B’s previous experience of harassment) and whether it is objectively reasonable for the conduct to have had that effect on B. The focus is very much on the effect of the actions and not what the intentions of the perpetrator (innocent or not) were.

Unlike other types of employment claims, the compensation a tribunal can award where an employee raises a complaint of sexual harassment is unlimited.

Steps Employers Can Take
Employers have a duty to take steps to prevent and stop harassment of employees by their colleagues. Where an employer can prove they took all reasonable steps to prevent harassment occurring this can act as a defence to any claim against the employer for harassment that does occur.

Steps that employers can take to prevent and deal with harassment include:

  • implementing robust anti-harassment and grievance procedures;
  • having a zero-tolerance approach to harassment in the workplace, including to sexual “banter” which others may find offensive;
  • providing training to employees so that they understand what is and is not acceptable behaviour;
  • training managers and HR staff in how to effectively and sensitively investigate allegations of harassment; and,
  • fostering a culture which encourages reporting and helps make employees feel they will be listened to.

These issues are particularly topical in the run up to the Christmas party season, which traditionally see a spike in complaints of employee behaviour at work-related social events. In relation to these events in particular, employers may wish to remind staff again of the standards of behaviour expected of them and avoid encouraging excessive consumption of alcohol.

For further advice, please contact your usual contact in the Employment and Pensions Team.

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