Recent media coverage has raised the profile of sexual harassment and opinions vary about whether it is reasonable for specific conduct to amount to unlawful conduct.
Sexual harassment is a difficult topic not least because harassment is ill-defined.
Given the serious implications for the accused if found culpable of harassment or sexual harassment at work (potentially resulting in dismissal and loss of career in addition to financial penalties of many tens of thousands of pounds) there is a presumption that there must be a strong objective element.
Under the Protection from Harassment Act the statute states that the perpetrator either knew or should have known, that the conduct, repeated on two or more occasions, amounts to harassment. The Court determines whether the conduct is genuinely so offensive and unacceptable that it becomes oppressive and unreasonable, so as to sustain criminal liability.
Tribunals remained free of charge
Up until July 2013, in spite of the increasing complexity of tribunal proceedings, claimants could submit a tribunal claim entirely free of charge. ACAS also provided free assistance to the parties to enable them to reach a negotiated settlement. If the case was then settled via ACAS there could be no cost at all to the unrepresented parties. If the case went to hearing and the employee claimant did not have legal expenses insurance and could not afford to instruct counsel then he or she would need to represent themselves.
The Equality Act 2010
The Equality Act 2010 provides both a subjective and objective definition of harassment, but does not require the conduct to be repeated.
Any conduct which creates an intimidating, hostile, humiliating, offensive or degrading environment, or violates an individual’s dignity constitutes harassment, even if it was intended as harmless fun. But there is also a requirement for that conduct to be objectively assessed. It is not just whether the individual felt humiliated, it is also necessary for that to be a reasonable conclusion.
That definition of harassment applies equally to any of the nine protected characteristics; whether on grounds of race; disability; religion or belief; pregnancy or maternity; marriage or civil partnership; sex; sexual orientation; gender reassignment; or age.
Definition of Sexual Harassment
To be identified as sexual harassment the conduct must be of a sexual nature, and be both unwanted and create a hostile (or degrading) environment etc. And sexual harassment may also occur if the individual is subjected to less favourable treatment following either submission to or rejection of the unwanted conduct.
If the unwanted conduct complained of arose because of your sex or gender, or sexual orientation, maternity or pregnancy, then that may also amount to sexual harassment. But the subjective test is also balanced by an objective evaluation of all the other circumstances.
The Type of Offensive Conduct
Sexual harassment can be caused by an offensive joke, a photograph or an inappropriate email or comment, or sexting. A topless calendar may cause offence, but whilst women are more likely to complain, men may also feel targeted. Brushing up against a member of staff could cause offense, as well as any inappropriate touching. Wolf whistling is not acceptable, and neither are any sexist comments to anyone of any gender or gender orientation.
Poorly considered comments
Comments about the attractiveness or lack of attractiveness of members of staff should not be tolerated because that can also cause serious offense and humiliation.
Staff members may have been in a consensual relationship, but when that relationship ends there could be retribution. It is important therefore to retain objectivity and remain empathetic when conducting an investigation into allegations of sexual harassment. Even if in a consensual relationship, junior members of staff involved with a manager, may be considered more vulnerable by an Employment Tribunal and therefore entitled to greater protection.
Take all complaints of sexual harassment seriously
Whilst some employees will be more sensitive than others, it is important to remember the test is both subjective and objective. If the individual is embarrassed or humiliated that may be sufficient to warrant a formal investigation and disciplinary action, even if the result was unintended.
Carry out a Full and Fair Investigation
Appoint a neutral investigator to prepare a report. There can be no foregone conclusion, as the allegation must be viewed “in the round”, with full consideration given to the established facts and very serious consideration given to whether it is reasonable for the conduct complained of to have caused the alleged offense or degradation.
Witness statements should be taken from both the accused and the accuser, in addition to those who are alleged to have seen or heard any inappropriate behaviour.
The accused should be suspended without delay as a precautionary measure, and a fair and objective investigation should be conducted as quickly as possible. It should be made clear to the accused that there is no presumption of guilt and suspension is not a disciplinary act.
Any evidence in the form of emails or sexting messages should be gathered and disclosed to the accused for his or her comment
Policies and Procedures set out in your Staff Handbook
Follow the policies and procedures set out in your Staff Handbook, and make sure your staff understand the implications of breaching any of your policies, including your anti-harassment and bullying policy.
The Seriousness of Allegations and Potential Penalties should be emphasised
Any individual who deliberately raises a false allegation will be guilty of serious or gross misconduct, and if the allegations are ultimately found to be justified, the accused is likely to be dismissed and could face criminal proceedings, if the accuser decides to prosecute under the Protection from Harassment Act.
The Christmas Party
Problems may arise during the Christmas Party so please make sure everyone is fully aware that sexual innuendo is not acceptable, and that they must not engage in flirting, kissing or sexting, as the Christmas Party is a work event, and employees and directors are subject to the same office rules that apply throughout the year.
Consensual flirtation may seem like harmless fun, but consent can be withdrawn leading to serious and potentially career ending investigations in the New Year.
Employers are vicariously liable for the actions of their employees and so will normally be a party to any subsequent Employment Tribunal proceedings, the costs consequences of which can be very high.
Awards in the Employment Tribunals can be in the tens of thousands, both for the employer and for the accused, as can the legal fees.
The legal costs and Tribunal Awards are in addition to the cost of management time over many months of preparation, and ultimately, should the decision go against the employer and the accused, potentially long lasting reputational damage.