16th Aug 2016

Sexual Harassment at work is "alive and well"

Unfortunately, this appears to be the case following new research by the Trade Union Congress (TUC).  As their findings reveal that of the 1,500 women surveyed more than half (52%), and almost two thirds of women aged 18 to 24 years old say they have been sexually harassed at work. 

How many times have we heard sexual harassment in the workplace being dismissed as “just a bit of banter”?  The reality is that it may seem like a joke or even a compliment to those who have never experienced it, but the figures below suggest another story and those who have will know just how undermining and humiliating it can be.

Looking at the findings more closely, the TUC reported that whilst at work:

  • Nearly one in three women (32%) had been subject to unwelcome jokes of a sexual nature

  • More than one in four women (28%) had been the subject of comments of a sexual nature about their body or clothes

  • Nearly a quarter of women (23%) have experienced unwanted touching, such as a hand on their knee or lower back

  • One in five women (20%) had experienced unwanted verbal sexual advances

In 90% of cases, the perpetrator of the harassment was male, with nearly one in five women reporting that it was their line manager, or someone with direct authority over them. 

Worryingly, 79% of women who said they were victims of sexual harassment at work did not tell their employer.  Why?  Because they feared that reporting it would impact negatively on their relationships at work (28%) or on their career prospects (15%), while others were too embarrassed to talk about it (20%), or felt they would not be taken seriously (24%).

 What is sexual harassment?

The Equality Act 2010 defines sexual harassment as 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 for them.

Sexual harassment at work can take many forms, from suggestive remarks, jokes about a colleague’s sex life, circulating pornography, to inappropriate touching, hugging or kissing, or requests for sexual favours. 

It can take place in a range of locations away from the normal workplace and outside office hours.  For example, on a work trip or social event, like the Christmas staff party or team away day.  It’s also worth noting that sexual harassment does not need to be in person, and can often take place via social media or email.

When is an employer liable?

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 exception to this rule, as the employer can escape liability if it can show that reasonable steps were taken to prevent harassment from happening in the workplace.

As well as a claim for sexual harassment, employers may also face employment tribunal claims for sex discrimination (direct or indirect) and/or unlawful victimisation from the complaining member of staff. 

Victimisation can arise where the complainant is subjected to a detriment by the employer or a colleague, for example in raising a complaint about the harassment at work, or helping a colleague to do so.

Unlike unfair dismissal, there’s no upper limit that to the amount of compensation that can be awarded by an employment tribunal to the claimant in these types of claims – so they can be very costly.  As well as any compensation awarded, there’s also the risk of negative publicity and damage to the employer’s reputation that can often follow.

Recommendations for employers

So what steps can employers take to try and stamp out sexual harassment at work, and minimise the risk of the above claims arising; 

  • Clear policies and procedures – have a clear zero tolerance approach to sexual harassment in the workplace, with strong policies and working practices reflecting this.  The use of social media and equipment (for example, work phone and laptop) should be taken into account and referred to when drafting policies covering sexual harassment.  

     All employees should be made aware of these policies, the reporting procedures and their rights and responsibilities regarding this issue.  In addition to the normal equal opportunities or stand-alone bullying / harassment policy, the employer’s grievance procedure can also be used to raise concerns about discrimination and harassment at work.  

  • Training – adopt a top-down approach to training and awareness for all levels of management and staff as to what constitutes sexual harassment.  This can include what’s acceptable and unacceptable, along with the potential risks / consequences to the business and individuals involved, should it happen.  

     Refresher training to staff on these issues, say every 12 to 18 months is always a good idea to ensure that everyone in the business is up to date with any changes or developments in the law, and can act as a reminder of best practice.     

  • Enforcement and consistency - having taken the above steps, make sure that any allegations of harassment are treated seriously and acted upon without delay.  This means carrying out the necessary investigations and acting in accordance with the relevant policy.  Finally, act reasonably and be consistent in the handling of any complaints, and any potential disciplinary action that may follow.   

Hopefully the TUC’s findings will be a wake-up call to employers that sexual harassment is no longer “just a bit of banter” and needs to be tackled moving forwards, as there’s no place for it in the modern workplace.

For guidance or advice on the issues raised in this blog, get in touch.  

Written by Mike Patterson of Berwins Solicitors 

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