Sexual harrassment in the workplace - Part 2

We have previously stated that any allegation of sexual harassment, or of any harassment for that matter, should be taken seriously and should be investigated. If the investigation has not been properly undertaken, according to the ACAS Code on Disciplinary and Grievance Procedures, the employer will find itself in a weak position if the employee in question starts an Employment Tribunal claim. The employee affected may have grounds to claim constructive dismissal.

Another point to beware of that is that the complainant must not be put to any detriment for raising the complaint. If the employee suffers some form of retaliation, this can be deemed as victimisation and a separate form of discrimination under the Equality Act 2010. The forms of detriment can be various. For example, the complaining employee may be put under strict performance monitoring, in which case it will fall onto the employer to demonstrate that the increase performance monitoring does not at all relate to the employee raising the complaint but, for example, is justified by the employee’s failing to hit the set targets.

The Equality Act 2010 recognises 3 forms of harassment:
-    Sexual harassment;
-    Unwanted conduct related to a protected characteristic which has the purpose or effect of either:
-    Violating the employee’s dignity; or
-    Creating an intimidating, hostile, degrading, humiliating or offensive environment for the employee.

The only deference between sexual and general harassment is that in sexual harassment the unwanted conduct is of a sexual nature. The definition of sexual harassment is broad and covers not only physical actions but also verbal and non-verbal conduct. Two male colleagues downloading and sharing pornographic images in presence of female colleagues is likely to constitute sexual harassment, unless of course the female colleagues themselves wilfully participated in sharing or viewing of the inappropriate imagery.

The Employment Appeal tribunal stated that sexual harassment should be defined on a common sense basis and by reference to the facts of each particular case. For example, a restaurant’s owner persistently attempted to have conversations with the waitresses about sex and to show them photographs and catalogues of sex toys and gadgets. The waitresses were also required to wear short skirts, which made them feel uncomfortable as they believed the owner liked to look at their legs. It is not surprising that the Tribunal found sexual harassment in this case, as it did in a case where a manager greeted a female employee with the words ‘Hiya, big tits.’ More subtle comment ‘You get really embarrassed when I talk to you about sex, don’t you?’ was also found to be an instance of sexual harassment.

By contrast, no sexual harassment was established in a case where a female employee asked her supervisor ‘Can I ask you for a favour?’, to which he responded with ‘As long as it’s not a sexual favour’. Importantly, the claimant had worked with this supervisor for over 2 years without any problem. The Tribunal took the view that the comment can only be regarded as a joke.

Lawgistics members can get advice on sexual harrassment from the legal team.


 

Authors: Kiril Moskovchuk

Published: 15 Nov 2017

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