Sexual harassment at work
Sexual harassment at work
Sexual harassment at work is specifically outlawed as a form of unlawful discrimination by the Equality Act 2010. Claims can be made in the employment tribunal by men or women, job applicants, employees, and apprentices.
This is a very topical area at the moment. There are high profile claims being reported in the media on almost a weekly basis, together with worldwide social media movements such as #Metoo, to demonstrate the widespread prevalence of sexual assault and harassment, especially in the workplace. This has lead to a significant increase in workers coming forward to raise a complaint and appropriate take legal action.
What is sexual harassment?
There are 3 different types of sexual harassment claims that you can make.
- Unwanted conduct of a sexual nature, which has the purpose or effect of violating your dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. This would include inappropriate touching, sexual innuendos, persistent requests for dates, leering and suggestive gestures, invasion of your personal space, and sexually explicit jokes.
- Where you either reject sexual advances, or accept them, but you are subsequently treated less favourably by the person who has harassed you. Examples of such less favourable treatment include, intentionally blocking your promotion or training opportunities (because the unwelcome sexual advances are turned down), and derogatory comments or unwarranted criticisms that are made as a result of refusing to go out with the person who is harassing you (or is a friend of the harasser).
- Sex-related harassment, where there is unwanted conduct of a sexual nature which relates to your gender, which again, has the purpose or effect of violating your dignity or creating an unpleasant environment. This would include, for example, hostile comments about childcare arrangements (if you are a female) and you have to constantly leave work early to care for your young children.
When does conduct amount to unlawful sexual harassment in the workplace?
The conduct must usually be made in the course of employment at work, although it can also extend to social work events outside usual working hours (such as Christmas parties, drinks in pubs and social media). It can even apply to completely non- related work environments, if the sexual harassment that has taken place, in turn, has an affect on the work environment. This is more of a grey area, and employers will not automatically be expected to investigate such incidents where they have taken place out of work.
If you were happy for the conduct which you are now complaining about to continue, then it could be argued that the conduct was not “unwanted”. There are exceptions though,for example, where you were in a very junior position and felt compelled to join in with banter or conduct because you felt vulnerable. Also, where you tell the person who is harassing you that they have overstepped the line, and you do no longer wish to be party to it, then this is helpful to any claim you wish to make (see also below in relation to the “banter excuse”).
It is not necessary for the conduct to be physical. For example, it could involve the display of pornographic material on a computer, or leering in a manner that is overtly sexual.
The motive of the harasser is irrelevant- the key issue is the effect on the person who is on the receiving end of the behaviour. Having said that, a tribunal would need to consider the question of “reasonableness”- in other words, whether a reasonable person would have been offended by the conduct in question or if an employee was simply being oversensitive.
What about the banter excuse?
Tribunals have often rejected the notion that “it was only banter” is a justification for sexist remarks. Having said that, if you are willing party to the banter, it would be difficult to then raise a claim. It is not always clear where the line is drawn, but if you make it clear to the person making the comments that he or she has gone too far- this will be more helpful to any claim for harassment.
Are employers liable for the actions of their staff?
The Equality Act says your employer has a duty to stop your work colleagues from harassing you at work. This means that your employer generally is liable for the actions of its staff. As mentioned above, this usually includes sexual harassment which takes place outside the work environment- for example an office party, pub get-together or on social media.
If you are harassed by one of your work colleagues or line manager, you can, in fact, make a claim in the employment tribunal against both your employer and individually against the person who harassed you (although usually, you would just bring the claim against your employer).
If your employers can show they took all reasonable steps to stop its employees from harassing one another, then they may escape liability. For such a defence to be successful, your employer would need to show that they have a well-drafted anti-harassment policy; all employees have been informed about the policy; and that they have been made aware of what they need to do if they believe they are being harassed on any grounds. You would, however, still be able to bring a claim against the harasser personally.
Can I still make a claim if I have remained silent and not raised a complaint?
Yes, you can. The employment tribunals do recognise that your relationship with the person who is harassing may not be your equal( for example, this could be a line manager). It is considered natural that you would be wary about reporting the matter.
Can a single comment which is not repeated amount to sexual harassment?
Yes, it can. Employment tribunals have ruled in favour of many employees on this basis.
What steps can I take if I am the victim of sexual harassment?
- Tell the person to stop if you are able to do so.
- Keep diary entries of what is going on including time, date, location, and retain important evidence like copies of emails, text etc.
- Inform your manager what is happening, or if the treatment is happening by your manger, then you need to inform someone higher up. Alternatively, approach HR or your Trade Union for support.
- If informal procedures are unsuccessful, consider raising a formal grievance, which every employee has the right to do. Your employer will be under a duty to investigate the matters you have raised.
- Take early legal advice about your options.
- Issue a claim in the Employment Tribunal
What are the the time limits for issuing a claim in the Employment Tribunal?
Any tribunal claim needs to be started within 3 months less one day of the last act of harassment. This is done by lodging the claim with ACAS under their early conciliation procedure, which is a mandatory first step. There may, of course, be a continuing act of harassment, rather than a single act, in which case the time limit continues to run
What if I am being accused of carrying out sexual harassment?
This is usually a matter of gross misconduct. Please click here to skip to the gross misconduct page.
Tactics of bringing a claim or reaching a negotiated settlement.
If you are the victim of sexual harassment, you may well be very reluctant to rock the boat or risk your career in making a complaint. At the same time, you may consider it is impossible for you to carry on working with your employer. Most clients we have dealt with, however, do not wish to let the person who has harassed them simply get away with their actions.
As mentioned above, there is always the option of bringing a claim in the employment tribunal. This is, however, a big step for a lot of people, and there will be many who will be reluctant to go down this route either due to the cost, the stress of bringing a claim, or being fearful about the matter entering the public domain.
If you have decided that you cannot continue to work for your employer in any event, it is often far better for a negotiated settlement to try to be agreed with your employer, prior to you actually resigning and taking steps to issue tribunal proceedings. You are always going to be in a stronger negotiating position before resigning.
If a settlement can be achieved, your employment would come to an end by agreement with your employer and there would be many termination arrangements which would usually include payment of financial compensation and the provision of an agreed reference. You would be expected to sign a settlement agreement, which is a legally binding document setting out the agreed terms.
It is always wise to seek professional advice before taking any steps- especially before resigning- as this could affect the level of compensation that could otherwise be negotiated and could even put at risk the possibility of any negotiated settlement.
At Landau Law, we are very sympathetic to the situation of clients who are the victim of sexual harassment, and highly experienced in advising on your rights and appropriate options. We have negotiated a vast number of successful settlements against a background of sexual harassment claims . Please call 020 7100 5256 or email email@example.com