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02nd November 2017

#MeToo – Complaints of Sexual Harassment in the Workplace

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Sexual harassment is headline news as the moment. Whether as a result of the allegations against Hollywood A listers such as Harvey Weinstein, Kevin Spacey and Dustin Hoffman, the spreadsheet of various allegations of wrongdoings by MPs, the results of a Radio 5 live survey published last week showing that of 2000 participants 53% of women and 20% of men reported experiencing sexual harassment at work or place of study or the #MeToo hashtag trending on Twitter, there is a degree of controversy in this area which is likely to reverberate in workplaces less well known than Hollywood and Westminster.
Those responsible for HR issues should review their internal processes in light of the current atmosphere of concern so that they are well placed to deal with any complaints received. This article will consider: what can amount to an actionable complaint of sexual harassment; whether an employer can be liable for the actions of an employee and give some practical tips for employers to consider in this area.

What is sexual harassment?

The definition of sexual harassment is found in section 26(2) Equality Act 2010. It can be broken down into a number of separate elements:

Conduct of a sexual nature

Guidance as to what constitutes ‘conduct of a sexual nature’ can be found in the Equality and Human Rights Commission Code of Practice on Employment, which says that it includes

  • verbal, non verbal or physical conduct including unwelcome sexual advances or touching
  • sexual assault
  • sexual jokes
  • displaying of pornographic images or sending emails with material of a sexual nature.

Conduct must be ‘unwanted’

If the recipient is happy for example to be touched by a colleague be it on their knee or shoulder or any other part of their body (rather than just not complaining about it), the conduct will not amount to harassment.

Conduct must have the purpose or effect of:

Violating the complainant’s dignity, or Creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant.

Note the requirement is that the conduct has the purpose or effect, which means that an intention to harass is not necessary for the definition to be satisfied, if that is the effect of the conduct.

When considering whether the conduct which has been complained about did indeed of the required effect, an employer (and indeed ultimately an Employment Tribunal) should consider three factors:

  • The complainant’s perception;
  • Any other circumstances of the case; and
  • Whether it is reasonable for the conduct complained about to have that effect.
That last point can be significant in that it means that an irrational oversensitivity to a situation will not amount to unlawful harassment. However, it will always be the perception of the complainant rather than the instigator of the conduct which will be considered. The fact that the instigator cannot see why anyone would complain about, for example, them touching a colleague’s shoulder will not be significant if the complainant’s perception of that act was that it made them feel degraded or humiliated and that that was a reasonable reaction to the conduct complained of. If a reasonable person could find that action to be humiliating or degrading, the conduct may well amount to unlawful harassment.

It is also not significant that the perceptions of different people will, inevitably, be different. The fact that one person finds the conduct trivial, but another feels intimidated by it. Absent irrational sensitivity the conduct may still amount to unlawful harassment.

How can an employer be liable for the action of its employee?

Anything done by an employee in the course of their employment is treated as having been done by the employer, regardless of whether the employer actually knew of and/or approved of those actions. This means that an employer can be held vicariously liable for acts of sexual harassment by one of its employees.

An employer will have a defence to such liability, if it can show that it took all reasonable steps to prevent the employee from unlawfully harassing a colleague. It is worthy of note that s109(5) Equality Act 2010 means that an employer will not be vicariously liable for any criminal offence committed by an employee. Therefore if the harassment complained of amounts to a criminal offence – sexual assault or even rape – the employer cannot be held liable.

In all cases of sexual harassment the instigator of the conduct complained about will be personally liable in addition to any vicarious liability of the employer.

Case law in this area means that the phrase ‘in the course of employment’ is given its ordinary meaning. In reality this means that any sexual harassment of a colleague in the workplace will almost inevitably amount to an act for which the employer may be vicariously liable. More difficult questions arise where the conduct takes place out of working hours and away from the employer’s premises. However it is still possible for an employer to be liable for such actions, particularly if there is some connection to work, such as at a Christmas party.

What steps should an employer take now?

Bearing in mind the high profile which the issue of sexual harassment at work has at the moment and that we are rapidly moving into the Christmas party season, which can be a flash point for such allegations to be made, an employer will be well advised to consider the following:

  • Does it have a robust Equal Opportunities Policy and Grievance Procedure in place, making it clear what conduct will not be tolerated and how complaints can be raised?
  • Do those policies have sufficient provisions in place to ensure that an employee is always going to be able to access someone in authority not involved with the allegation? There should be a minimum of two people to whom complaints can be raised.
  • Is there an atmosphere within the business that concerns raised will be treated in a confidential and supportive manner, whilst also being investigated thoroughly? Consider whether it would be appropriate to have a policy of separating the complainant from the person complained about during any investigation process.
  • Ensure that any complaints which are well founded are responded to appropriately via the disciplinary procedure so that the employer’s Equal Opportunities Policy has credibility.
  • Provide training throughout the workforce in what amounts to inappropriate conduct within the workplace and the approach which the employer will take to such conduct. Training of this nature is likely to be required if an employer wishes to rely on the statutory defence to claims of sexual harassment, that it took all reasonable steps to prevent the harassment taking place.
Hewitsons Employment Team offer in house training on all aspects of employment law, including Equal Opportunities issues. If you would like to discuss any training requirements please contact Clare Waller on 01604 463350 or or your usual contact within the Employment Team.