Sexual harassment at work is a form of unlawful discrimination under the Equality Act 2010. Claimants can be both men and women, job applicants, apprentices and employees.
Although the Equality Act has been a reliable piece of employment law for over a decade, sexual harassment in the workplace is still a significant issue. More than half of women in the UK have experienced unwanted sexual behaviour in the workplace, according to a YouGov survey in 2020.
The problem isn’t just about crude jokes or ‘banter’, the treatment of predominately women at work is shocking. One in ten women have suffered a sexual assault at work and 1% of the respondents to the survey had experienced rape or attempted rape at work.
High profile cases have served to shine a light on some of the most horrific acts of harassment and misogyny, which have often been institutional and deep rooted within the culture of organisations.
It is the responsibility of everybody to make the workplace but also society a safer and more inclusive environment. If you see it, stop it, if you hear it, report it.
What is sexual harassment?
There are three types of sexual harassment claims that can be made.
- Unwanted conduct of a sexual nature, which has the purpose or effect of violating your dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
This would include, sexually explicit jokes, lewd innuendos and gestures, inappropriate touching, persistent advances and invasion of personal space.
- Being treated less favourably for either refusing or accepting sexual advances, by the person who has harassed you.
Examples of this could include, blocking promotion or training, derogatory comments or unwarranted criticisms made as a result of refusing an advance from the person who is harassing you. This could include comments or actions made by another if they are a close acquaintance of the harasser.
- Where there is unwanted conduct of a sexual nature which relates to your gender, which has the purpose or effect of violating your dignity or creating a hostile or unpleasant environment.
An example of this would include, hostile comments about childcare, if you leave work early to care for your young children.
Conducting amounting to unlawful sexual harassment in the workplace
The key thing here is that the conduct should occur in the workplace, or that it has an affect on the working environment. This could also include social events, such as work Christmas parties, or social media.
The conduct does not have to be physical, for example a colleague viewing or sharing pornography in the workplace or acting in an overtly sexual or leering manner could constitute sexual harassment.
Whether the conduct was intended to be harassment or not is irrelevant. The act or behaviour is judged based upon the impact it has on the recipient. An employment tribunal would consider whether it was ‘reasonable’ for the recipient to be offended however.
Was it “unwanted”?
It is helpful if those at the receiving end of sexual harassment are consistent with calling out the behaviour in the workplace, if you were happy to go along with it to a point, it could be argued the treatment was not “unwanted”.
However, this isn’t as straight forward as it may seem. Your status within the organisation may play a part in whether you realistically had a choice to object or not, through fear of reprisals.
If you cannot object at the time, try and do so as soon as possible. If you don’t feel you can object at all you should take legal advice.
“It’s just banter”
To put this simply, this isn’t an excuse. However, if you go along with the banter, you may struggle to subsequently claim and you become part of the problem.
There are jokes that are funny and there are comments that are unlawful, be safe and stay clear of jokes of a sexual nature.
What to do if you are the victim of sexual harassment
- Tell the person to stop, if you feel comfortable in doing so.
- Keep a diary - what happened? Who was involved? What was said? Write the diary at the time to maximise its impact.
- If you feel comfortable, raise this with your line manager.
- If you don’t feel comfortable consider submitting a formal grievance.
- Take advice from a trade union or employment lawyer.
- Submit a claim via acas.org.uk within 3 months less one day of the act of harassment.
Liability
If an employer can prove they did everything reasonably in their control to prevent harassment, they may be able to avoid being liable for the actions of its employees. However, you would still be able to pursue a claim against the harasser. If in doubt; take further advice.
If you have been subjected to treatment you think is possibly sexual harassment, get in touch for further advice. You do not have to suffer in silence and treatment like this is entirely unacceptable.
