Employer's Guide - Sexual Harassment at Work
The headlines over the past few weeks have been dominated by the Harvey Weinstein scandal. It started on 5th October 2017 when New York Times’ journalists, Jodi Kantor and Megan Twohey broke the story on how Mr Weinstein used his influential position to sexually harass and assault women.
An investigation by The New York Times found previously undisclosed allegations against Mr Weinstein by former employees and actresses stretching over nearly three decades.
Mr Weinstein is now disgraced. His wife has left, and the board of his own company has sacked him.
There is little doubt that women (and sometimes men) in the British workforce still face sexual harassment at work. In the recent Supreme Court decision of R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent)  UKSC 51, which ruled the Employment Tribunal fees were unlawful, Lady Hale stated the high cost of bringing a claim puts women at a disadvantage. This is because they are more likely to bring claims under type B, which covers discrimination and harassment claims.
Sexual abuse and harassment at work can lead to depressed morale, frightened staff, damaged corporate reputations, and compensation claims. It is therefore crucial that employers and HR directors understand the law surrounding sexual harassment, so they can recognise it and deal with it correctly if a complaint is made.
What is harassment?
There are three types of harassment defined in s26 of the Equality Act 2010:
" (1) A person (A) harasses another (B) if
(a) A engages in unwanted conduct related to a relevant protected characteristic, and
(b) the conduct has the purpose or effect of
(i) violating B's dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B."
Harassment claims can be brought on the grounds of seven of the nine protected characteristics in the Equality Act; namely:
- gender reassignment;
- religion or belief;
- sex; and,
- sexual orientation.
The excluded characteristics are marriage and civil partnership, and pregnancy and maternity.
Sexual and victimisation harassment, on the other hand, does not need to relate to a protected characteristic. The Sex Discrimination Act 1975 proves a legal right for men and women not to be sexually harassed at work or to be treated unfavourably because of their sex.
What can constitute sexual harassment?
The definition of sexual harassment is controversial. It occurs where the perpetrator engages in conduct of a sexual nature which is unwanted by the victim and the conduct is designed to:
- violate the victim’s dignity; or
- create an environment that is intimidating, hostile, degrading, humiliating or offensive to the victim
When deciding if conduct amounts to sexual harassment, the following is should be considered:
- how the victim perceived the behaviour
- other circumstances surrounding the alleged sexual harassment
- whether it is reasonable to construe the perpetrator’s conduct as sexual harassment
Conduct of a sexual nature includes unsuitable bodily contact, sexually suggestive comments, and sexually offensive acts in the workplace.
There are many grey areas in the law of sexual harassment. For example, the conduct must have occurred during employment, but social functions can fall under this criterion. Also, the behaviour must be unwanted, to constitute sexual harassment. But if the victim was very junior and/or the perpetrator was in an extremely powerful position (as was the case of Mr Weinstein), the Employment Tribunal may rule that the victim had little choice but to ‘join in’ or ‘laugh off’ the comments/actions.
How employers can protect themselves from liability for sexual harassment
As an employer, you can be held vicariously liable for the actions of your employees during their employment. However, you can avoid being held vicariously liable if you can show you took all reasonable steps to ensure sexual harassment would not occur in the workplace.
A well-drafted sexual harassment policy is a good start, but sometimes it is not enough to avoid liability. HR directors/employers need to ensure the plan is communicated to all staff and procedures are in place (which teams are aware of) which will be followed should an allegation of sexual harassment occur. Having managers attend equal opportunity training is also important.
Having these HR systems in place will not prevent an employee from making a claim in the Employment Tribunal for sexual harassment. It is therefore imperative that the policies and procedures in place to deal with such allegations are used consistently, evidence and witness statements collated quickly, and suspension of the perpetrator while an investigation occurs considered.
No employer wants to deal with a sexual harassment claim, but attempting to sweep allegations under the carpet can cause immense personal and professional reputational damage. The best method for dealing with the situation is to engage well-prepared HR policies and procedures and seek legal advice from an employment solicitor to deal with the matter fairly and appropriately.
Guillaumes LLP Solicitors is a full-service law firm based in Weybridge, Surrey. We have a highly experienced employment law team who can advise you on your responsibilities under the Equality Act 2010. To make an appointment, please call us on 01932 840 111.