Sexual Harassment

Allegations of sexual harassment are continuing to dominate the news on both sides of the Atlantic, with both the entertainment industry and politicians featuring at the moment.

With this seemingly rapid rise in sexual harassment claims we take a look at what sexual harassment means in the workplace and what employers can do to deal with allegations and prevent claims.

Sex is a protected characteristic under the Equality Act 2010. Sexual harassment in the workplace can range from derogatory comments about a particular gender to physical harassment toward a particular employee such as unwelcome sexual advances. Harassment under the Act is defined as when a person engages in unwanted conduct related to a relevant protected characteristic or of a sexual nature which has the purpose or effect of either violating another person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for another person.

Banter is often an area that can lead to discrimination claims, with employees participating but subsequently claiming that such banter amounted to harassment.  Whilst tribunals acknowledge that workplaces are not (and cannot be) sterile, they will expect employers to step in where banter has strayed too far into focusing on protected characteristics.

Employers will be vicariously liable for the conduct of its employees unless they can show that they have taken all reasonable steps to prevent such conduct from taking place. It is also possible for employees who have not directly been on the receiving end of the ‘unwanted conduct’ to bring a claim for its negative impact on the working environment. Common areas where harassment and/or discrimination can take place are recruitment, pay, promotions, trainings and dismissals.

As a starting point, employers should ensure that all  employees are aware of what behaviour is unacceptable in the workplace and what could amount to harassment and/or discrimination. This should be contained in an easily accessible document, such as an equal opportunities policy or anti-harassment policy and employers should have measures in place to verify that each employee has had a copy.

Employers in receipt of allegations of sexual harassment should act swiftly to investigate the complaints. If any investigation shows evidence that the harassment has occurred, it should ordinarily lead to disciplinary action being taken against the harasser. Failing to take any allegations seriously could lead to the employee resigning and claiming constructive dismissal in addition to any discrimination claim.

Having dealt with allegations, employers should monitor relationships amongst staff to ensure that anyone who has made allegations is not subjected to any detriment as a result of having done so. This would give rise to a further claim for victimisation.

Employers should also consider periodic training for employees to reinforce what is and what is not acceptable in the workplace.

If you have any queries relating to sexual harassment or sex discrimination please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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