Thursday, December 2nd, 2021
At a glance
Having attended the ‘Rights of Women’ legal workshop on Sexual Harassment and Violence in the Workplace last week, Senior Associate James Collier takes a look at the prevalence of such behaviours in the workplace, who is most likely to experience sex related and sexual harassment at work, and the remedies for such unlawful treatment if you are an employee or worker.
The workshop brought home how important and relevant this issue continues to be, and James outlines below what the employer should think about when faced with an allegation of sexual harassment in the workplace.
What is sexual harassment at work?
Sex-related and sexual harassment at work is defined as conduct that is unwanted and related to either sex, or of a sexual nature, and that creates an intimidating, hostile, degrading or humiliating environment.
There is a range of conduct that can amount to unlawful sexual harassment, from low level staring and sneering to inappropriate comments and invitations, right up to serious sexual violence and rape in the workplace.
Sexual harassment in the workplace has long lasting effects on the person experiencing the harassment and affects the performance and effectiveness of businesses and/or organisational employers. As 4 out of 5 of those harassed at work do not report it, it is clear that the choice for those people is to stay and suffer the harassment at work or to leave the business or organisation; either outcome having a negative impact on the employer’s performance.
Who experiences sexual harassment at work the most?
The following Trade Union Congress (TUC) studies have highlighted just how common sexual harassment in the workplace still is, and how the experience of sexual harassment at work is weighted towards women, young people, non-white people, LGBT people and disabled people:
TUC (2016) – ‘Just a Bit of Banter’ – Sexual Harassment in the workplace in 2016
- 1 in 2 women have experienced sexual harassment at work
- More than 1 in 10 women experience unwanted touching or attempted kissing
- 4 out of 5 women decide not to report the sexual harassment experienced at work.
TUC (2019) – Sexual Harassment of LGBT people at work
- 68% LGBT workers experience some form of sexual harassment at work
- 1 in 8 (12%) LGBT workers experience a serious sexual assault at work
- 2 out of 3 LGBT workers decide not to report the sexual harassment experienced at work.
TUC (2021) – Sexual Harassment of disabled women in the workplace
- 7 out of 10 disabled women experienced sexual harassment at work
- 2 out of 2 disabled workers decide not to report the sexual harassment experienced at work.
The Government Equalities Office (GEO) 2020 survey of sexual harassment reported that 30% of women had experienced sexual harassment in the workplace in the past 12 months. The GEO survey also identified that young people, LGBT people and disabled people were statistically more likely to experience sexual harassment at work.
What actions should employers take?
When unlawful acts are done by an employee or worker in the course of their employment, such as an act of sexual harassment in the workplace, it is highly likely that the employer will face arguments that the employer is vicariously liable for the unlawful acts of the worker. Therefore, it is important that the employer applies a fair procedure when investigating the complaint, and that the employer effectively manages the ongoing situation between the complainant and alleged perpetrator in the workplace.
It can be daunting for an employer when allegations of sexual harassment are raised by an employee or worker. Taking some preliminary advice on first and next steps is always a good idea and we can assist to identify an appropriate procedure that can be applied in order to safeguard the rights of the complainant and also of the alleged perpetrator of the harassment, whilst the investigation is carried out.
Early legal advice is going to allow for:
- The identification of appropriate terms of reference for the investigation of the complaint.
- Appropriate consideration of suspension or instruction to not contact complainant and redeployment matters.
- Appropriately triage the incident and immediate steps.
- Proper evaluation of data protection and issues of confidentiality.
- Assist employers to respond to and defend any claim for sexual harassment brought against them.
How can we help employers?
It is best advice for an employer to have a discrete Sexual Harassment at Work policy that is applied consistently.
If you are an employer, we can assist you with preparation of a tailored and best practice Sexual Harassment Policy, provide advice on reporting systems and data protection issues, managing investigation into unlawful harassment complaints, and if possible to negotiate and to reach an agreed outcome with the individuals involved.
What actions should employees take?
If you are an employee that has experienced conduct at work that is related to your sex, or that is of a sexual nature, that was unwanted by you and created a humiliating, hostile, degrading, intimidating environment, there are various possible Tribunal and other court claims you might have, both against the employer and against the individual perpetrator of the harassment.
The following Employment Tribunal claims may be considered:
- Sexual harassment and sex-related harassment, under the Equality Act 2010 – this claim is available to both employees and those who are workers. It is important to note that compensation for personal injury caused by discrimination can be claimed as part of the harassment Tribunal claim.
- Constructive unfair dismissal – if the individual was an employee with 2 years continuous service and was forced to resign because of the harassment, or failure of the employer to take appropriate action.
- Constructive automatic unfair dismissal – if the individual was an employee and was forced to resign because of a serious and imminent danger faced in the workplace.
- The above claims in the Tribunal have strict claim submission time limits – that is 3 months, less one day, from the last act of harassment complained of for Equality Act claims, or 3 months less one day from the date of termination of employment for the unfair dismissal claims.
An individual who has suffered a personal injury at work – that was caused by harassment experienced at work or by the way that the matter is dealt with by the employer – may have a civil court claim for personal injury. For personal injury claims, a 3-year limitation period applies, so that claims for personal injury must be submitted within 3 years, less one day of the date when the injury was sustained (or from the date of knowledge of the injury if this is later).
There may also be civil court claims for negligence made by the victim of the harassment against the employer, or claims made under the Protection from Harassment Act 1997.
How can we help employees?
If you are an employee, we can identify the claims that might have been triggered, advise you on the claim submission deadlines for those claims, and assist you to assert those claims against the perpetrator and your employer.
Should you require any assistance with any of the above, please contact our employment department on 020 7228 0017 or contact James below:
James Collier, Senior Associate