By Helen Besch, Senior Associate at Fox Williams LLP and Rebecca Richardson, Trainee Solicitor at Fox Williams LLP
Whilst people may be under the impression that sexual harassment in the workplace is a thing of the past, the recent high profile and controversial case of the Sky TV presenters reminds us that, at least in some workplaces, sexual harassment is still very much alive and kicking.
As you will probably recall, the Sky football presenter, Andy Gray, was disciplined for making sexist comments about a female referee during a football match where he proclaimed that she and other female assistant referees “did not know the offside rule”. Following this incident, video footage showing Mr Gray asking a female co-presenter to “tuck this in”, gesturing towards the microphone near his waist, emerged. Sky Sports considered this to be “unacceptable and offensive behaviour” and subsequently dismissed him.
In the light of this case, we thought it would be worth us reminding you what constitutes sexual harassment.
What is sexual harassment?
Under the provisions of the Equality Act 2010, sexual harassment involves unwanted conduct of a sexual nature that has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the recipient.
Conduct in this context can be any unwanted verbal, non-verbal or physical conduct of a sexual nature. Conduct of a sexual nature can include unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, displaying pornographic photographs or drawings or sending e-mails with material of a sexual nature.
To amount to harassment, conduct must have the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her (or him). Where the employee claims that the conduct had this effect (although this was not the conduct's purpose), the tribunal must consider whether it was reasonable for the conduct to have that effect. This avoids liability arising where the employee is "hypersensitive".
A recent case of an over-sensitive claimant involved a John Lewis shop assistant who claimed that a female colleague had slapped him on the bottom three times, telling him that she “did that to all the boys”. The complainant lodged a formal grievance, which he claimed would have been handled differently if he was a woman complaining about an older man and that John Lewis had therefore discriminated against him on the grounds of his sex. It took the tribunal six days to consider the complaint, but it found that the 68-year-old female sales assistant had simply patted the claimant’s back reassuringly following a customer complaint. His claim was therefore struck out. This serves as a useful example of the type of behaviour that may be considered sexual harassment and goes to show the importance of seeking to deal with any such claims ‘in-house’ before they escalate.
Most cases of sexual harassment are committed by fellow workers so why should employers be concerned?
If committed in the course of employment, an employer may be liable for any acts of sexual harassment by its employees. In addition, in certain circumstances, an employer may be liable for acts of sexual harassment committed by third parties (such as its customers or contractors). An employer might be able to avoid liability if it can demonstrate that it took all reasonable steps to prevent the harassment.
Employers should be aware that even a one-off incident can amount to harassment: B need not have made A aware that the conduct was unwanted.
Often the first an employer knows about sexual harassment is when an employee puts in a written grievance or goes off sick with stress. By this stage, it may be too late to avoid liability and the employer could face a time-consuming employment tribunal claim resulting in a hefty payout, since awards of compensation for sexual harassment are not subject to a cap.
Legal consequences aside, if allowed to continue the effects of sexual harassment can be particularly damaging to business: it can undermine confidence, cause stress and dramatically reduce morale and the performance of employees.
Practical steps to reduce risk
Employers need to take any potential harassment seriously. In certain workplaces there may be a view that some “banter” is usual and inoffensive. However, employers should be mindful of the fact that what some people find amusing banter others will find to be offensive harassment.
The safest approach is therefore to ensure that anything which might be construed as sexual harassment (rude jokes, rude emails, pictures of scantily-clad models etc) is not permitted.
An employer should therefore:
1.Provide staff with an employment handbook, which includes policies on equal opportunities and harassment, setting out what constitutes acceptable behaviour and what does not.
2.Provide training on equal opportunities and harassment. This will raise awareness and may help managers to recognise and address with sexual harassment at an early stage.
3.Address any potential sexual harassment issues promptly and seriously.
Helen Besch is a Senior Associate and Rebecca Richardson is a Trainee Solicitor in the Employment department at Fox Williams LLP. For more information about this article, Helen can be contacted on email@example.com and Rebecca at firstname.lastname@example.org
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