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Sexual harassment at work

Practical and effective solutions for your employment issues.

What is it?

Sexual harassment is “unwanted conduct of a sexual nature.” (Equality Act 2010). What this conduct includes is a matter of fact for an Employment Tribunal to decide.

Who is protected against it?

Not just employees – this can also be workers, contractors and self-employed people, and job applicants.

Do you have to complain at the time?

No. The legal test for the Tribunal is whether the person has had their dignity violated, or an intimidating, hostile, degrading, humiliating or offensive environment has been created for them.  

What if the person causing the problem didn’t mean to?

That’s not a defence – if the conduct has had that effect, whether they intended or not irrelevant.

What should the employer do?

If they know about it, they have to take steps to protect staff from it, which could include suspension and disciplinary action.

Is the employer legally liable?

Yes, especially if there is a pattern of previous conduct which they have not taken steps to prevent or deter. They have a duty to protect staff.

Does the behaviour have to be in work?

Not necessarily – previous cases have extended the work environment to work nights out, business trips and ‘working from home.’ It can include behaviour in remote meetings, such as by Zoom or Teams.

What does an investigation involve?

A statement should be taken from the person who is making the claim, and any witnesses to this. This can include those who didn’t see the harassment itself but saw the upset that it caused. The person who is accused of the behaviour should be asked for their recollection at an early stage.

Do I have to stay at work during this?

Periods of leave should be allowed rather than have people work together after an allegation is made – at the same time, confidentiality should be observed among colleagues, by for example saying that someone is ‘on holiday’. The leave should be paid but not deducted from the holiday entitlement.

Who can experience sexual harassment?

This can happen to people of any gender identity or sexual orientation, and can be carried out by anyone of the same sex, a different sex or anyone of any gender identity. It does not have to be by an employee who does it – claims can be made based on the behaviour of a customer or a member of the public.

Does it have to be targetted at someone?

No, it can be behaviour which is aimed at no-one in particular but colleagues generally, such as telling jokes, or sharing images on social media groups

Does it have to happen more than once?

No, it can be a single incident, although the actions would have to be unambiguous and it may depend on whether any witnesses were present. The lack of any other witness though should not stop a serious allegation being investigated.   

Does it have to be in person?

No, it can be through social media, email, messaging. For example, it can consist of following someone’s movements via social media apps and commenting on this to them.

I have been accused of this – do I have rights?

Of course – you have the same right to have matters kept confidential as the person who has made the allegations. An investigation which is not fair to all parties could form the basis of a claim of constructive dismissal. You can also get advice about a claim being made in Employment Tribunal against you (as well as your employer).

What if the employer does nothing?

Employers have a duty of care to their employees – failure to take this seriously can amount to a breach of the employment contract, which would entitle an employee to resign, and claim constructive dismissal. If the person is on leave and denied opportunities such as promotion as a result, this could also be a claim of detriment due to harassment.

Will I be compensated?

The Employment Tribunal has the power to award damages for lost wages, future earnings that will be missed out on, and also make a separate award for the distress caused called ‘Injury to Feelings.’ Unlike a court, the ET can also make a Recommendation that an employer takes steps to improve its guidance.

Will the employer be given publicity?

ET Judgements are now published online, and frequently picked up by the news media. This can be a powerful deterrent to an employer who wants to turn a blind eye to the actions of their employees.

Will I be named

There Tribunal can be asked to protect the individual rights to privacy in sexual cases. This right can also be claimed by the person who is alleged to have carried out the harassment, but not by the employer as it is aimed at protecting individuals rather than companies.

Are there timescales for things to happen?

The employer should start to investigate within no more than 14 days. If they don’t, then you have to be aware that the Tribunal rules require ACAS to be consulted within three months (minus a day) from when the event happened. So if it happened on November 15th, it would have to be taken forward by no later than February 14th.

I have a small business and don’t have HR support – are there exemptions?

The Equality Act says that the anything done by an employee is to be treated as having been done by the employer unless the employer can show it took “all reasonable steps” the employee from acting in this way. This could include, for example, having made it known in no uncertain terms that this type of behaviour was not going to be tolerated. The size of the business would be taken into account in assessing what was ‘reasonable’ – but having taken no steps at all would not provide much of a defence.

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