Sexual harassment
Although the “Me too” movement was successful in exposing the veracity and prevalence of sexual harassment, unfortunately harassment is something women continue to experience. In this article we look at the legal definition of sexual harassment.
Unlawful harassment can happen to anyone. As this article is part of a series to mark International Women’s Day, it will focus on harassment experienced by women perpetrated by men.
Legal definition
The Equality Act 2010 defines sexual harassment as unwanted conduct of a sexual nature, that has the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive atmosphere for them.
The Equality and Human Rights Commission Code gives the following examples of sexual harassment: unwelcome sexual advances, sexual assault, sexual jokes, touching, and displaying pornographic material or drawings.
Harassment does not necessarily need to be a series of instances, and one-off acts can amount to harassment in law, provided that conduct falls within the statutory definition. For example, in Instu Cleaning Co Ltd v Heads 1995 IRLR EAT, a single comment of “Hiya, big tits” made by a male manager to his female colleague twice his age, was found to amount to sexual harassment, under the pre Equality Act legislation.
In assessing whether sexual harassment has occurred, a tribunal will therefore ask itself the following questions:
- What is the conduct complained of?
- Was that conduct unwanted?
- Was that conduct of a sexual nature?
- Did that conduct have the purpose or effect of violating the claimant’s dignity, or creating a degrading, intimidating, humiliating, or offensive environment for the claimant?
In assessing the final question, the tribunal will examine the subjective experience of the claimant and whether it was reasonable for the conduct to have that effect on that particular claimant, in the context of the other circumstances of the case. The purpose of the objective element of the test is to exclude liability where the claimant is considered to be hypersensitive and/or unreasonably offended. An example is found in Smith v Vodafone UK Ltd ET Case No,2302770/00. In Smith, the claimant had a punnet of melon slices on her desk. Her colleague remarked “You’ve got some lovely melons there”. The colleague laughed and became embarrassed, then he apologised and said “that didn’t sound right did it?”. The claimant said nothing and then resigned. She said she was humiliated as he was referring to her breasts. The tribunal found on the facts that there was an element of hypersensitivity on the part of the claimant; there had been no previous history of innuendo and the comment was meant innocently.
Reasonable steps defence
Under s109 Equality Act, employers can be held liable for acts of harassment carried out by employees in the course of their employment. This stands even where these acts are carried out without the employer’s knowledge or approval. An employer, however, has a defence to that liability if they can show that they “took all reasonable steps” to prevent the employee from carrying out those acts.
Reasonable steps could be equality and diversity training, harassment training, and relevant polices that are regularly brought to the attention of employees.
Limitation
The limitation dates in the Employment Tribunal are strict. The claim must be presented to an Employment Tribunal within 3 months, minus one day, from the date of the incident of sexual harassment; or 3 months, minus one day, from the date of the last act of in a series of acts amounting to harassment.
If you require any advice about harassment in the workplace, please do not hesitate to contact our approachable expert discrimination lawyers today.
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