Despite some sources suggesting that attitudes about what constitutes harassment are changing, workplace sexual harassment has in fact been unlawful for many years. But as the #MeToo campaign showed, many women have experienced harassment at work without feeling they can challenge that behaviour. Whether or not recent publicity surrounding the issue will see that change remains to be seen but if you are experiencing sexual harassment, you should be reassured that the law is on your side.
That law is now contained in the Equality Act 2010, which consolidated older discrimination legislation and implemented EU law and contains a specific definition of sexual harassment. It outlaws unwanted conduct that is related to sex or of a sexual nature and has either the purpose or effect of violating the complainant’s dignity or creating an intimidating, hostile, degrading, humiliating, or otherwise offensive environment for the him/her. Treating a complainant less favourably because he/she has submitted to or rejected such conduct is also outlawed.
It’s important to realise that a complainant doesn’t need to show that the perpetrator intended to intimidate, degrade, humiliate or offend him/her, just that their behaviour had that effect. In deciding this, a Tribunal must look at the complainant’s perception, the circumstances and whether it is reasonable for the conduct to have that effect. So an “innocent” joke, comment or action could be found to be sexual harassment if, in the circumstances, a reasonable person in the complainant’s position would be humiliated or offended, but an over-sensitive recipient might not succeed in a sexual harassment claim even if their feelings are genuine.
Examples of sexual harassment could be
- Sexist “jokes”
- Discussions about appearance, sex or sexual “banter” amongst colleagues
- Displaying pornographic images, leaving them for a colleague to see or sending them electronically
- Inappropriately touching a colleague – context is everything here: a European kiss on the cheek would be treated very differently to a “wandering hand”
- Treating a colleague less favourably after he/she has declined an invitation for a date
- Suggesting promotion or advancement in the company would be determined by sexual favours
Employers are “vicariously liable” for harassment unless they can show that they took “all reasonable steps” to prevent it. This would include sexual harassment taking place outside the workplace provided that it was connected with it, for example at a Christmas Party, away day or work trip.
So what should a victim of sexual harassment do?
- If there can be any doubt, make clear that the conduct you complain of is not wanted – you don’t appreciate the sexist “jokes” or “office banter” and want it to stop. If you don’t feel comfortable doing this directly, approach a friendlier face who might have a word in the perpetrator’s ear. If they are genuinely clueless as to the effect it is having on you, they should be embarrassed enough to stop.
- Keep notes in a journal or diary, whether paper or electronic. Memories fade fast and they could be good evidence if you do need to take legal action. Write down how the incident(s) made you feel as well as what happened, when and who was there.
- Approach management or HR informally with your concerns about sexual harassment. This is a good test of how the organisation might deal with a complaint. Some react defensively but more enlightened employers will take such concerns seriously.
- If the informal approach does not work, you may need to raise a formal complaint or grievance about sexual harassment. Your employer might ask you to do this before they will investigate the complaint.
- If the outcome of the grievance does not resolve matters for you, you can bring a claim in the Employment Tribunal for sexual harassment. You can do so without raising a grievance but might find your prospects of success and/or compensation are affected if you do not.
It’s important to remember that time limits for Tribunal claims are short: you must contact ACAS for Early Conciliation within 3 months of the last incident, even if your employer is still investigating a complaint, grievance or appeal. Take early advice about your options so that you can preserve your right to claim.
Louise Taft has over 15 years’ experience of Employment Tribunal claims for harassment and can help you draft a grievance, coach you through the complaints process, negotiate settlement or represent you in an Employment Tribunal claim. Contact her on 020 7935 3522 or firstname.lastname@example.org
Whatever your personal circumstances the above is only a guide and we would advise you to contact us to obtain definitive advice as you will appreciate that each person’s circumstances are unique to them.