Employment

Hardly a day has gone by in recent weeks without a headline about sexual harassment. But what sort of behaviour are we actually talking about?

What is sexual harassment?

In terms of the Equality Act 2010, sexual harassment is where someone engages in:

  • Unwanted conduct related to sex or of a sexual nature; and
  • That conduct has the purpose or effect of violating another person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

In addition, you can’t treat someone less favourably because they reject (or submit to) harassment that is related to sex or of a sexual nature.

Some examples

  • Unwanted verbal, non-verbal or physical conduct of a sexual nature.
  • Unwelcome sexual advances or touching.
  • Sending emails with material of a sexual nature.
  • Sexist jokes or ‘banter’ of a sexual nature, even if not directed at a particular individual.
  • A male or female worker being told that, as a man, or as a woman, they will never be competent to carry out a particular task.
  • Displaying pictures or objects with sexual overtones.

What if the harasser didn’t intend to cause offence?

If the effect of conduct is to cause offence, this can still be harassment, even if this was not the intention.

The Equality and Human Rights Commission Code of Practice gives the example of male workers downloading pornographic images in the office. They don’t intend to upset a female colleague, but she is aware of their behaviour.

This could be harassment but, before deciding on this, a tribunal would consider:

  1. The victim’s perception i.e. was she actually offended?
  2. Was it reasonable for the conduct to cause offence? This protects employers against harassment claims from ‘hypersensitive’ victims.
  3. Other relevant circumstances, such as the working environment.

If, on the other hand, a harasser intends to cause offence, then unwanted conduct related to sex or of a sexual nature will be harassment, regardless of factors 1 – 3 above.

Does it apply to men and women?

Both men and women can be guilty of sexual harassment; and both can be victims.

What about conduct outside of work, such as Christmas parties?

In some circumstances, employers can be liable for conduct outside of work. Workbox subscribers can find detailed advice at Christmas Parties and Social Events.

Can a one-off incident be harassment?

Yes, a single incident can be enough. A victim does not need to have made it clear that the conduct was ‘unwanted’. As the Employment Appeal Tribunal has said, allowing would-be harassers to test their conduct first, to see if it was unwanted, would amount to a ‘licence for harassment’.

What should employers be doing?

Harassment carries business risks, including low staff morale, resignations and reputational damage.

In certain circumstances, it could trigger claims under the Protection from Harassment Act 1997, for constructive unfair dismissal, and / or personal injury. By far the most common claim will be for harassment under the Equality Act 2010. In terms of this, as an employer, you will be liable for sexual harassment meted out between colleagues (even if you didn’t know or approve of it) unless you can show that you took all reasonable steps to prevent it. Workbox users can read more about prevention strategies at Bullying and Harassment: Prevention.

But for most employers, adopting an effective prevention strategy is unlikely to be simply a means of avoiding these risks: from a moral perspective, it is quite obviously the right thing to do.

Kathleen Morrison

Kathleen Morrison

Professional Support Lawyer at Brodies LLP
As a Professional Support Lawyer, Kathleen provides practical, user-friendly and up-to-date resources for clients and the employment team. Kathleen regularly blogs on employment issues and is responsible for developing BResourcefull Workbox, Brodies’ online HR site, giving businesses easy access to employment law know-how.
Kathleen Morrison