Tuesday, August 18th, 2015
Given that claims can be made by men or women, job applicants, employees, apprentices and those working under personal service contracts, how can employers avoid one?
There are three types of sexual harassment at work: the first is unwanted conduct of a sexual nature, which has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
Historically, pictures of naked women in the workplace would be a good example, but the modern day equivalent is sexually explicit jokes by email. Also, inappropriate touching or comments on a female employee’s chest, persistent requests for dates and sexual innuendos have all been found to be sexual harassment.
However, there is a second definition: sex-related harassment, which is where there is unwanted conduct related to the person’s gender, which – again – has the purpose or effect of violating their dignity or creating an unpleasant environment.
For example, cases have decided that gossip about the paternity of an unborn child can be harassment on grounds of sex, as could hostile comments about childcare arrangements when a female employee has to constantly leave work early to care for her young children.
Even something such as putting materials up on a high shelf where none of the (naturally shorter) female staff can reach them could be viewed as harassment.
The third type of sexual harassment is if an employee rejects sexual advances or submits to them, and is then treated less favourably by the harasser.
When does conduct amount to unlawful sexual harassment?
Conduct must be in the course of employment. However, this is a sensitive grey area and the definition can sometimes extend to social events outside of work.
If the conduct was not “unwanted” it will not be harassment, but a note of caution: if the harassed employee is very junior, there is a risk that although they appear to be joining in and the actions are not “unwanted”, they will say that they felt they had to join in with the jokes or risk losing their jobs, and a tribunal may accept this.
A tribunal must also consider whether or not it is reasonable for the conduct to have the effect alleged – if no reasonable person would be offended and the employee is simply oversensitive, then it will not be sexual harassment.
The big danger for businesses is that they allow joke emails and inappropriate language in the workplace without complaints, but the moment a manager needs to have a difficult conversation with an employee, around performance, conduct or redundancy, suddenly offence is taken and harassment is alleged.
Furthermore, the widespread use of jokes and inappropriate language could be put forward to suggest institutional sexism.
Protecting against future claims
An employer is generally “vicariously liable” for the actions of its employees in the course of employment, so if a member of staff is found to have harassed a colleague, the employer will be held responsible.
However, there is an important exception; if the employer can show that they took all reasonable steps to prevent harassment then they will escape liability.
It is not enough, though, just to have a well-drafted anti-harassment policy; all employees must be told about it and should be aware of what they need to do if they believe they are being harassed on any grounds.
You need to also undertake equal opportunity training with all managers at the very least and make sure that they discipline any employee guilty of harassment.
If they take all reasonable steps to prevent the conduct, then the employer will not be liable for the actions of an employee guilty of harassment, but the victim can still bring a claim against the harasser personally.
Many managers have had the situation where an employee comes to them and alleges harassment, but then says that they do not want to take it any further.
The policy should make it clear that any such allegation is very serious and will be investigated.
Claims of this nature should be taken seriously; this could mean the suspension of the alleged harasser considered and witness statements taken as soon as possible. Harassment findings should be dealt with seriously and consistently.
Even if the employer does not find in favour of the alleged victim, the employee still has the option to bring an employment tribunal claim, while still in employment, and the tribunal will consider all of the evidence when reaching its decision. If this raises alarms bells then please contact us for help – Lamont Jones Training also offer training in this area at a very reasonable cost – once a year training in Equal Opportunities and Harassment is well worth the investment to prevent you being vicariously liable.