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Employment Law

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Veale Wasborough Vizards , 13 NOV 2017

Sexual Harassment - An Employment Perspective

Sexual Harassment - An Employment Perspective
Allison Cook
Veale Wasbrough Vizards

In light of recent topical news articles involving allegations of sexual harassment, the legal position on what constitutes sexual harassment and how accusations should be handled are increasingly relevant and important in an employment context.

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Employees should be aware of what constitutes sexual harassment and employers should ensure that they provide a safe and inclusive environment for all staff, handle complaints effectively and provide clear guidelines and training to staff to achieve this.

What Is Sexual Harassment?

Sexual harassment is defined in the Equality Act 2010, and occurs when someone is subjected to unwanted conduct of a sexual nature which has the purpose and effect of either violating the recipient's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them.

Unwanted conduct of a sexual nature is not limited to physical conduct, and can also include verbal and non-verbal conduct. Conduct can include (but is not limited to) sexual jokes, unwelcome sexual advances, sending emails with material of a sexual nature and touching.

When determining if conduct amount to harassment, the Employment Tribunal (ET) considers the perception of events from the perspective of the employee alleging sexual harassment, the other circumstances of the case and whether it is reasonable for the conduct to have the effect that it did on the recipient. In evaluating claims in this way, it ensures that liability does not arise in circumstances where the employee is being 'hypersensitive'.

Common Misconceptions

It is often thought that if an employee has 'put-up' with this conduct for years or joined in with 'banter' the conduct cannot be said to be unwanted. This is not the case.

An incident does not have to have happened more than once to constitute sexual harassment, a 'one-off' event alone can constitute sexual harassment.

Finally, it is possible for conduct initially accepted to become unwanted, for example at the end of a consensual relationship. An employee may therefore succeed in a claim for sexual harassment where their former partner's behaviour becomes unwanted as a result of the end of their relationship.

Who Is Liable?

The responsibility for an employee's sexual harassment normally lies with their employer.

However, it is possible for employer's to avoid liability for sexual harassment by one of their employees where it is demonstrated that they took all reasonable steps to prevent the harassment. When determining if reasonable steps have been taken, the Employment Tribunal looks at what steps have been taken by the employer and the considers if there were any other reasonable steps that the employer could have taken. Examples of reasonable steps include:

  • Drafting and implementing an Equal Opportunities policy and an Anti-Harassment and Bullying policy, and ensuring that these are reviewed on a regular basis.
  • Ensuring that employees are aware of these policies and have access to them.
  • Providing training for staff in equal opportunities and harassment issues, and on how to effectively manage and report these incidents.

Best Practice

Employers should:

  • Ensure that they have robust practices in place to prevent, report and adequately investigate and respond to allegations of sexual harassment.
  • Provide adequate training to their staff on equal opportunities and harassment, to ensure that they are aware of the policies in place and adequately prevent and respond to sexual harassment within the workplace. This will ensure that instances of sexual harassment are identified and addressed in a timely manner, and help prevent situations where sexual harassment is addressed at a late stage when employment claims have already arisen without the employer's knowledge.

Finally, employers should be aware that without suitable safeguards, they will likely be held liable for the actions of their employees.