In August 2016 the Trade Union Congress (TUC), in association with the Everyday Sexism Project, has published the results of its research into sexual harassment in the workplace in 2016. According to the ‘Still Just a bit of banter?’ report, out of approximately 1,500 women polled:
•52% have experienced some form of sexual harassment (63% in the 18-24 age group);
•35% have heard comments of a sexual nature being made about other women;
•32% have been subject to unwelcome jokes of a sexual nature;
•28% have been subject to comments of a sexual nature about their body or clothes.
What is harassment?
Section 26 Equality Act 2010 (“EqA 2010”) defines harassment as unwanted conduct related to, in this case, a person’s sex which has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating and offensive environment for them. If such conduct is of a sexual nature (e.g. banter, innuendo, physical touching, offensive gestures or sexual jokes), then this is defined as sexual harassment.
Sexual harassment is also defined as when someone is treated less favourably because they go along with or reject the conduct of a sexual nature. An individual can be the victim of harassment even where they have previously joined in with the conduct complained of. The definition is therefore broad and looks at the effect on the victim rather than the intention of the wrongdoer. In fact whether the wrongdoer intended for their conduct to have that purpose or effect is largely irrelevant.
What does this mean for your business?
If one of your members of staff sexually harasses another in the workplace or on a work-related social event, then you could be held liable for their actions. If the victim of the harassment brings a claim at the Employment Tribunal and succeeds, this would result in financial liability, adverse publicity, reputational damage and instability of the workforce. There is no qualifying service requirement for sexual harassment, and a worker has immediate protection.
What can you do about it?
Employers must be pro-active in tackling sexual harassment in the workplace and taking any complaints seriously. Under EqA 2010, an employer can avoid vicarious liability only if it can show that it took all reasonable steps to prevent the wrongdoing. Investing in robust policies from the outset (and complying with them!) could save businesses considerable time and money further down the line should problems arise.
The following would be helpful steps for you to take, but remember, always seek legal advice.
1.Educate your workforce. Ultimately, if an employee does not know the accepted standard of behaviour in the workplace, how will they know when they are doing wrong;
2.Arrange regular equality and diversity training for staff, and in particular managers. The TUC report indicates that 1 out of 5 of the women polled said it was their line manager, or someone with direct authority over them who subjected them to sexual harassment;
3.Tighten up your Staff Handbook in line with the expected standard of behaviour, include an anti-bullying and anti-harassment policy, as well as a grievance policy detailing how to raise a complaint;
4.Encourage openness and communication in the workplace. If you are the MD or very senior, it’s a good idea to promote an open door culture within the office;
5. If an employee raises a complaint, do not dismiss it! Employers should take concerns seriously, and investigate them promptly and in line with internal procedures.
What if you are the victim?
If you are a victim of sexual harassment in the workplace, do not be scared to report it. You have legal protection from the outset, irrespective of how long you have worked for the company, and should not suffer in silence. If you are treated less favourably, sidelined or dismissed for raising a complaint, you are protected, and may have other actionable claims against your employer. Keep a record of all the instances of harassment, and report them to your manager, HR, or someone your trust.
Men can be victims too
It is not only women who are subjected to sexual harassment in the workplace, men can be victims too. The TUC report polled women only, however men are afforded the same protections as women.
If you have been the victim of sexual harassment in the workplace, or would like a review of your current policies and procedures, please contact Gelbergs’ Employment Team on 0207 226 0570 or email [email protected]
This blog is for information purposes only and is not a definitive statement of law. It is correct as of the publishing date, but may become out of date as the law changes. You should always seek professional legal advice about your particular circumstances.