A survey of professional women representing a wide cross section of Guernsey’s business community revealed that 48 per cent had experienced some form of sexual harassment in the workplace. The poll was conducted at "The Sex Debate", hosted by the Women’s Development Forum in April 2015 and debated by Mourant Ozannes. Over 100 women attended the debate.

The debate

The debate focused on the "grey area" of sexual harassment, navigating the muddy waters where office banter becomes bullying or harassment.

In the absence of a specific law protecting against harassment in the workplace, Mourant Ozannes’ managing partner Jessica Roland explained that the line between what is "office banter" and "harassment" hinges not on the intentions of the harasser, but on the perceptions of the person being harassed and the impact of the conduct on that individual.

Identify where office banter becomes bullying or harassment 

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Scenarios

Sexual harassment is generally defined as unwanted conduct which is related to sex which has either the purpose or the effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.

In addition to questions related to their own direct experience, the women polled were presented with ten workplace scenarios and asked whether they thought they constituted harassment. The responses show just how difficult it is to draw the line. For example, when asked about sending a work colleague sexy underwear as a Secret Santa gift, 49 per cent thought it would be deemed sexual harassment, 38 per cent thought it would not and 13 per cent did not know. Unfortunately, there is no absolute answer to such a question. Context is everything and will always be relevant to determining if a particular act or course of conduct constitutes harassment.

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In legal terms, all three of these scenarios could constitute grounds for a sexual harassment claim since in the relevant context they could be said to create an intimidating, hostile, degrading, humiliating or offensive environment. The importance of context was highlighted Mourant Ozannes’ senior associates Carly Parrott and Rachel Guthrie, who led the debate. Also important is the relevant power imbalance of the harasser and their victim. A junior employee is more likely to feel intimidated as she unwraps the inappropriate Secret Santa gift than would the chief executive officer. What is harmless and inoffensive to one person may be unwanted and intimidating to another. For example, while 67 per cent of respondents thought that sending a work colleague flowers anonymously on Valentine’s Day would not constitute harassment, the outcome might be different if the recipient had previously discouraged the romantic advances and had made clear that they were not interested.

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Social Media

One of the issues debated was the extent to which social media has exacerbated harassment in the workplace and complicated what is already difficult terrain. Asked whether posting photos on Facebook of a drunken colleague at the office party might constitute harassment, 56 per cent of respondents thought that it probably would.

56% of the audience thought posting photos on Facebook of a drunken colleague at the office party might constitute as harassment

A recent UK tribunal thought so too: ruling over a similar issue, the tribunal considered that there was a sufficient nexus between the conduct and the employment relationship to bring the conduct within the "course of   employment" and justify the dismissal of the poster. Social media, it was argued, not only exacerbated harassment in the workplace, but has become a tool of harassment particularly where the boundaries of the "workplace" are no longer physical, but virtual.

What is appropriate?

What is and is not considered appropriate and acceptable in the workplace changes over time and may differ from one work environment to another. For example, a surprisingly high number of respondents (78 per cent) thought it would be harassment to continue calling a colleague "babe" after being told that they didn’t like it.

Almost as many (74 per cent) felt that asking an employee to wear make up to convey a smarter image in a non-client facing business was tantamount to bullying or harassment. The responses would no doubt have been different two decades ago and will likely differ in Guernsey today depending on the particular workplace.

The importance of having appropriate workplace policies and providing appropriate training in respect of those policies cannot  be overestimated, particularly where the consequences of bullying and harassment in the workplace can lead to unfair or constructive unfair dismissal claims, discrimination complaints (if the conduct is related to an individuals’ sex) or even criminal sanctions.

However, of our respondents, only 34 per cent thought they could easily draw the line between banter and bullying or harassment; less than 60 per cent of respondents knew that their employer had a policy on sexual harassment but only 43 per cent had actually read it. This suggests that employers could do a lot more to educate their workforces about sexual harassment and to ensure that there are clear policies in place to deal with any allegations of workplace harassment.

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Conclusion

The legal remedies available to employees  who feel they have been sexually discriminated against or harassed are limited to three months’ pay for discrimination and six months’ pay unfair or constructive unfair dismissal.

When compared to the uncapped damages available in the UK, these remedies may seem inadequate. However, and as several participants pointed out in question time, the small size of Guernsey’s business community means bringing any employment-related claim could be career-ending. It is no surprise, therefore, that few harassment claims have ever been determined by the Guernsey Employment and Discrimination Tribunal.

20% of the audience admitting that they had met their partner at work

The debate concluded with an entertaining look at whether office romances should be prohibited and despite Carly Parrott’s valiant efforts to argue for the elimination of any form of workplace romances, Rachel Guthrie’s practical arguments won out - with almost 20 per cent of the audience raising their hands and admitting that they had met their partner at work. The lessons to be learned from the debate and drawn from the responses to the survey is that harassment and bullying does exist in the Guernsey workplace, but that it can and must be managed proactively by employers adopting robust and practical policies and consistently applying those polices. Training and awareness is key in ensuring that the workplace culture is one that does not perpetuate but rather eradicates inappropriate workplace banter and harassment.