Despite being outlawed by the Equality Act 2010, it seems sexual harassment remains prevalent within the workplace.
A recent survey carried out by the Trade Union Congress ('TUC') found that more than half of all women polled believed they had experienced sexual harassment during their career (TUC Report: Still just a bit of Banter? Sexual Harassment in the Workplace in 2016) (the 'Report').
Life without laughter would be pretty dull and humour at work can enhance employees' experience and help build closer relationships between colleagues. But, humour is personal and one person's 'joke' could be highly offensive to another. Employers are undoubtedly in a difficult position, do they become the 'fun police' and try to regulate or stop workplace banter altogether or risk liability by trusting employees not to overstep the mark?
Understanding the legal basis of claims
There are three possible types of sexual harassment claims:
- Sex-related harassment involves unwanted conduct of a sexual nature that relates to gender, which has the purpose or effect of either a) violating a person's dignity or b) creating an intimidating, hostile, degrading, humiliating or offensive environment. An example would include antagonistic comments towards a female employee about childcare arrangements where they have to leave work early.
- Unwanted conduct of a sexual nature, which has the purpose or effect of either violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Examples would include sexual innuendos or inappropriate touching, hugging or kissing.
- Where sexual advances are either rejected or accepted but as a result a person is treated less favourably by the harasser. Examples of such treatment would include preventing promotion or unwarranted criticisms made by the harasser.
While sex-related harassment is the most common, it is widely known that the unwanted conduct, for example, aggressive banter, need not have been directed at the person bringing a claim. It is enough that someone has overheard sex-related comments and found them offensive. A man could therefore bring a sex-related harassment claim if he was present when colleagues made offensive comments, related to gender, to a female employee.
Employers will be liable for the actions of their employees where the conduct occurred in the course of employment. Not only does this include conduct within the workplace, but also at work-related events including away days and Christmas parties.
An employer can avoid liability if it can show it took all reasonable steps to prevent harassment. This includes having appropriate policies in place, showing that the workforce had been trained on those polices, and taking all complaints seriously.
But it's just a bit of 'banter', right?
Wrong. The Report highlighted that women who experienced sexual harassment often found their experiences were minimised by colleagues and that they were seen as unable to 'take a joke' if they challenged or reported the behaviour. But with one in ten of those polled reporting that the harassment had a negative impact on their mental health, and that it contributed significantly to work related stress and anxiety, the issue of sexual harassment should not be underestimated.
Tips for employers
Sexual harassment in the workplace might have proven a tough nut to crack historically, but this does not mean it is an intractable problem. In tackling the issue, employers must ensure they adopt a top-down approach, working with all employees and managers to create a positive and inclusive culture which values individuals' dignity and encourages respect. Employers need to ensure that the thin line between harmless workplace banter and a culture in which instances of sexual harassment go unchecked is not crossed.
With this in mind, employers should:
- Offer training - HR and all levels of management should receive regular training on sexual harassment both in terms of what constitutes sexual harassment and how to respond to complaints.
- Apply clear policies - employers should have a clear zero tolerance approach to sexual harassment and implement policies which reflect this. Employees need to understand clearly that acts of discrimination and harassment in the workplace could be treated as gross misconduct. Manager's need to be empowered so that they have the confidence to step in and address language which in their view crosses the line.
- Enforce policies effectively - employers should pay particular attention to grievance procedures and how complaints of sexual harassment are dealt with when they arise. They should always be tackled in a neutral and sympathetic way and investigated in a timely manner.