A widespread problem
Recent revelations in both America and the United Kingdom have shone a spotlight on the issue of sexual harassment and highlighted how common it is in the workplace. This is reflected in a recent survey carried out by the TUC: 52% of the women surveyed said that they had experienced some form of sexual harassment at work, nearly a quarter had experienced unwanted touching – like a hand on the knee or lower back at work -, and a fifth had experienced unwanted verbal sexual advances at work.
The same TUC survey found that only about one in five affected women report sexual harassment and for those that do, their outcomes are poor: 80% said that nothing changed following their report and 16% said that the situation worsened. Doubtless employment tribunal fees (now abolished), which made discrimination claims prohibitively expensive for many, have not helped employees take action when experiencing sexual harassment. Non-disclosure agreements, where deployed, present an on-going disincentive.
However, the recent revelations also indicate that in many workplaces there is a knowledge and tolerance of sexual harassment that has made it difficult for employees to report such behaviour. The media focus on this issue may now begin to change that cultural climate: there are clear signs that steps will be taken by all the major political parties to address the issue for those working in politics and one can expect that there will be pressure for similar reforms in other workplaces.
What the law says
Media attention on the issue of sexual harassment has also revealed widespread ignorance as to what might constitute sexual harassment and/or harassment related to sex.
The Equality Act 2010 prohibits an employer from subjecting an employee to sexual harassment, harassment related to sex or less favourable treatment because they reject or submit to harassment.
Harassment under the Equality Act is defined as:
unwanted conduct related to sex (or of a sexual nature, in relation to sexual harassment); and
that conduct has the purpose or effect of violating the employee’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
It is important to note that unwanted conduct can constitute harassment where it has the proscribed effect, even when the perpetrator did not intend that effect.
Whether or not the unwanted conduct has the proscribed effect depends upon the perception of the employee, the circumstances of the case and whether it is reasonable for the conduct to have that effect.
Unwanted conduct includes a wide range of behaviour including spoken or written words or abuse, physical gestures, facial expressions and other physical behaviour. Unwanted conduct of a sexual nature would include unwelcome sexual advances (although there is no need for the victim to have made it apparent that the conduct is unwanted), touching of the victim’s body, sexual assault, sexual jokes, pornographic pictures and emails of a sexual nature. A single act, whether of a sexual nature or related to sex, can amount to harassment if sufficiently serious.
Harassment by customers and other third parties
Where unwanted conduct comes from a colleague the employer will typically be liable for those actions under the Equality Act. Where the unwanted conduct is a customer’s or other third party’s the position is much less straightforward.
In the well-known ‘Bernard Manning case’ of 1996, a Hotel was found liable for having failed to take appropriate steps to protect staff members from discriminatory remarks being made by the celebrity (who was hosting an event at the Hotel). The House of Lords, however, subsequently disapproved this approach in 2003 and held that an employer could only be liable for a failure to take protective steps where that failure was itself a discriminatory act/omission.
In 2007 the High Court held that domestic discrimination law did not properly implement the underlying European Directive. Parliament responded in 2008 by introducing a new ‘three-strikes’ rule (which again instituted liability in the absence of any discriminatory motive, where an employer had failed to act on its knowledge of previous harassment). This protection was repealed, however, from October 2013, as unnecessary ‘red tape’.
As a result, in the absence of a discriminatory motive on the part of an employer, the scope for a successful claim has again contracted. Where an employer is a public sector body a claim might still be advanced (pre-Brexit at least) in reliance on the ‘direct effect’ of the underlying European law. Commenting on a successful claim of this kind in 2011, however, the Employment Appeal Tribunal noted that such an employer would still not readily be found liable, especially in cases involving working environments where harassment is difficult to prevent (such as schools and prisons).
Whilst a discrimination claim under the Equality Act may not be viable for many employees, other potential legal avenues remain open. A failure to protect an employee may constitute a breach of the contractual duty of trust and confidence owed by the employer. If so then the employer may also be at risk of a constructive unfair dismissal claim. In cases where psychological injury is sustained a personal injury claim might also be advanced.
Action by employers
Employers should ensure that they encourage a culture in which harassment of this nature, be it by staff or by third parties, is clearly understood to be unacceptable. Employers should also seek to ensure that victims of such harassment feel able to come forward knowing that they will be supported and effective action taken. Robust policies which are adhered to can help to engender such an environment. Where concerns are raised practical steps should be identified to prevent and reduce the risks identified. Training is also vitally important. Employers may well find a surprising lack of knowledge amongst their staff as to the types of behaviour that can constitute harassment and training can help to prevent such behaviour occurring. Training can also ensure that any complaints of harassment are appropriately and effectively dealt with.
sexual harassment, workplace harassment, #MeToo
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