Sexual harassment is a common problem in workplaces. A report published by the United Nations in 1998 found that between 40 and 50% of women had been sexually harassed in some manner in the workplace, whether by their co-workers, clients or customers. Further, the report found that it was “usually the harassed employee, rather than the harasser, whose career is negatively affected”. Clearly, then, sexual harassment is both widespread and extremely serious. What is therefore needed is a clear understanding of the law relating to sexual harassment for employees (male or female), what to do if you think you’re being sexually harassed, and what your options are.
Sexual harassment in the workplace is prohibited under s.26 of the Equality Act 2010. Under s.26 harassment occurs if there is sexual harassment or unwanted conduct of a sexual nature which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim, or such harassment or unwanted conduct violates their dignity.
The unwanted conduct or harassment can be in any form – email, telephone call, voicemail message, conversation, or action (for example, having your bottom pinched). The important thing is that such conduct must be communicated to the victim. Showing this generally isn’t a problem. The fact that the victim of the sexual harassment has knowledge of the unwanted conduct or harassment generally suffices for communication. However, it is extremely useful to a case for there to be evidence of such sexual harassment (apart from the victim’s testimony) – emails, for example. Sexual harassment doesn’t necessarily have to be explicit conduct of a sexual nature. If, for example, your employer puts up any material of a sexual nature (or allows such material to be put up) then the employer may be harassing their employees if it makes the workplace an offensive place to work for any employee, male or female.
The unwanted conduct of a sexual nature must also have had the purpose or effect of causing harm to the victim (i.e. by, for example, humiliating them). If strong or explicit language is used, or it is clear that the conduct is intended to be harmful, then there is normally a clearly demonstrable purpose. However, where the conduct is possibly not objectively harmful but the victim subjectively finds it to be harmful then it would have the effect of harming the victim. An important point to note here is that the Employment Tribunal will look at the alleged conduct and decide whether it was reasonable for such conduct to have such an effect on the victim. In doing so the Employment Tribunal will consider the circumstances surrounding the alleged conduct.
If you think you’re being subjected to sexual harassment then it is important to do two things. Firstly (if appropriate in the circumstances), inform your line manager of the conduct that has occurred and, if necessary, file a formal grievance. This is recommended for two reasons. It may be possible to resolve the situation fairly easily – by transferring either the victim of the harassment or the harasser to another department or the management having a quiet word with the harasser. It is also recommended that the conduct is reported as it may affect your compensation if you do not do so. Secondly, gather as much evidence as you can of the harassment. Keep a diary and keep all documents relevant to the harassment. The more evidence you have, the stronger your case will be.
It is also important that you are aware of your options if you think you’re being harassed. There are three options available. Firstly, you may choose to do nothing. Workers often do because they fear the consequences for their career if they do expose sexual harassment in the workplace. However, this is not the recommended option. It will not stop the sexual harassment taking place. Secondly, you can choose to report the matter to your line manager. It can then hopefully be sorted out internally. Thirdly, if the sexual harassment is serious, you have reported it (or your employer should reasonably have known of it), and your employer has taken no action to stop the harassment, then you may choose to resign and claim constructive dismissal.