The legal definition of sexual harassment is when a man or woman is subject to unwanted verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of either violating the person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Conduct of a sexual nature can include unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, displaying pornographic photographs or drawings or sending emails with material of a sexual nature.
Sexual harassment can lead to claims being made in the Employment Tribunal under the Equality Act 2010, and an employer may be deemed as vicariously liable for the actions of the harasser. Vicarious liability is a legal term which deals with the situation where someone is held responsible for someone else’s actions (for more information see our previous article here). Generally, an employer will be liable for the acts of its employees, provided those acts are done in the course of their employment. However, individual employees can also be personally liable for acts of harassment too.
There some important points to note about sexual harassment claims as set out below:
1. It is a myth that ‘banter’ cannot constitute sexual harassment. The Employment Tribunals have continually rejected employers’ attempts to defend sexual harassment claims by saying that it was only banter, or providing evidence that the employee bringing the claim actively engaged in such banter. In the Employment Tribunal case of Smith v Renrod Ltd (2015), Miss Smith was employed as a sales executive in a car dealership and claimed she had been sexually harassed by her manager, who had made comments to her which were of a sexual nature. The Employment Tribunal found that there was a culture of sexual banter in the workplace in which both Miss Smith and her manager actively participated, and that Miss Smith was not shocked by the day to day banter between colleagues. However, it found that the comments made by her manager did go too far. While the Employment Tribunal found that Miss Smith was relatively robust and not adverse to participating in, or even initiating, sexual banter, the conduct and comments of her manager went beyond what was acceptable to her.
2. A second myth is that a single comment which is not repeated cannot constitute sexual harassment. In Insitu Cleaning Co Ltd and another v Heads (1995), the Employment Appeal Tribunal upheld the finding that a woman had been sexually discriminated against when a manager made a single comment to her about the size of her breasts. It was held that the Employment Tribunal was entitled to conclude that the one incident was sufficiently serious to amount to sexual harassment.
3. It may not necessary for a victim of sexual harassment to have raised a complaint. Employment Tribunals recognise that the employee is normally in an unequal relationship with the harasser, and that it is a natural reaction not to wish to create further conflict for fear of losing their job. In Munchkins Restaurant and another v Karmazyn and others (2009), the Employment Appeal Tribunal upheld a claim that a restaurant manager had sexually harassed four waitresses. This was despite the waitresses putting up with the conduct for some time, and even initiating talk of a sexual nature as a method of coping with his behaviour.
4. Employment Tribunals considering sexual harassment claims will take into account how a complainant perceives the actions that have led to the claim. However, they will also consider whether or not it was reasonable for the conduct to have had the effect of violating dignity or creating an offensive environment. Therefore, an employer could have a defence if it thinks that an employee is being “over-sensitive”. For example, overhearing a sexual swearword in a work environment where swearing is commonplace might not be considered as sexual harassment.
5. It is also possible for someone to claim sexual harassment when the offending remark or action is not directed at that person. For example, a woman who overhears a sexist remark could bring a sexual harassment case, even if the person who made the comment did not realise that she was listening at the time.
Given the above, what can you do as an employer do to help prevent sexual harassment claims?
Employers should make it clear that sexual harassment in the workplace will not be tolerated, and a statement to that effect could be included in any equal opportunities policy. Employers should also specify how incidents of sexual harassment can be reported. However, employers should probably go further than that and provide training to all employees about this, as well as training managers on how to deal with situations where sexual harassment is involved.
Employers should act quickly to stop banter or behaviour that is getting out of hand, which may be as simple as informally speaking with the employee or employees who are engaged in that banter to ask them to stop, or commencing disciplinary action if they do not stop, or if the comments are of a sufficiently serious nature. Complaints about sexual harassment should never be ignored and should be dealt with in a timely and reasonable manner. It is also crucial to have an up to date Equal Opportunities policy and to ensure that all staff are aware that discriminatory behaviour will not be tolerated. This could prove crucial in your defence against a discrimination claim. Even better, you could offer Equal Opportunities training to your staff – please contact us if we can help with this.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).