Whilst it is encouraged that the workplace is a happy place where all employees get along with one another, there are limitation as to how well or in what manner they choose to get along. More and more cases are arising out of actions that are ‘acceptable’ in the workplace which actually are not.
‘Workplace Banter’ is the worst culprit, in particular towards young and female employees. They are often subject to neither banter that they enjoy nor find humorous, which can often lead to grievance and in some cases, tribunal claims being made against the company.
For instance, it might be humorous for you to comment with friends outside of work about the attributes of the female form, but it would not be acceptable to have picture of or comment of a female employees attributes in the workplace. Whilst some might consider this to be flattery or ‘banter’ others may find it intimidating, harassing or degrading.
Sexual Harassment covers both men and women and is defined under the Equality Act 2010 as:
(1) A engages in unwanted conduct related to a relevant protected characteristic, and 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.
(2)A also harasses B if A engages in unwanted conduct of a sexual nature, and the conduct has the purpose or effect referred to in subsection (1)(b).
Note here that the word conduct is used, and not action, thus sexual harassment can take the form of Verbal, Physical and Visual conduct.
Verbal conduct could be remarking on a females clothing, physical appearance, jokes that invoke women/men/homosexuals on a derogatory level, sex based jokes, innuendos, joking or seriously requesting sexual favours in return to work being undertaken, spreading rumours in regards to an individual’s private sexual practices, threatening to name a few.
Physical conduct will consist of the more commonly noted forms of sexual harassment, pinching, touching, stroking, unwarranted hugging, and kissing, against not an exhaustive list.
Visual conduct can take the form of looking at someone in an inappropriate way, gestures of facial expressions that could be deemed derogatory or suggestive as to that person’s sexual practice. Further pictures, magazines, computer screen pictures, drawings and emails with sexual content sent to someone or in view of someone could be deemed as harassment.
Thus the scope of Sexual Harassment is far broader than employers may think. Further the principles apply to all forms of harassment and victimisation, especially when relating to young employees. They are often the butt of the joke and often treated as a lower class citizen due to the fact that they are young and need to ‘learn their place’ so say. This is usually combined with threats of a physical nature of they don’t do as someone superior to them says. This creates an element of fear and bullying within the workplace, which again can lead to Tribunal action again the employer.
Employers therefore need to be aware of what is going on day to day in their office/ workshops etc and crack down on any noted conduct before it escalates. Further ensure that anti bullying/harassment policies are in place and everyone is aware of what is and is not acceptable. Whilst the law does not expect the work to be without fun, there must be boundaries so as to be able to prove when someone has gone ‘too far’.
There is further issue in regards to employees prospective of the conduct of others. As employers you should act as the model employee and not allow yourself to act in ways that may be deemed as the above listed conduct, as it will likely to be copycatted and later claimed that it is accepted practice because ‘the boss does it as well’.
This can lead you into serious issue and thus you should be very careful in how you conduct yourselves; For example;
– You may have a longstanding agreement with Employee A that it is acceptable to pinch their bottom and call her ‘Babe’
– Employee B sees this conduct as friendly and thinks that it acceptable to act this way towards all employees in the same way, they thus decide to tries to pinch Employee C and calls her ‘Babe’, who views it as harassment and raises a grievance.
– You undertake and investigation and Employee B states that they were under the impression based on your behaviour as their employer that it was reasonable conduct amongst all employees.
– You are then prejudiced in the investigation as you cannot look to dismiss Employee B on the grounds that they would be treated inconsistently, but you by allowing them to remain in employment you are not sufficiently resolving Employees C’s grievance, as Harassment of this nature could be a dismissible offence. You are therefore left in the position to make a choice, either one of which will face repercussion.
In remembrance of Dennis Chapman 1951 -2015