Following recent high profile allegations of sexual harassment, ACAS has published guidance specifically aimed at workers experiencing sexual harassment in the workplace, including how to report any incidents of unwanted conduct of a sexual nature.

The widespread problem continues

Since our previous article, there have been continued news reports involving a number of high profile personalities and allegations of sexual harassment, including historical abuse.

Sexual harassment is defined in the Equality Act 2010 as unwanted conduct of a sexual nature.

As a result, the newly published ACAS guidance highlights to workers the kind of workplace behaviours which may amount to sexual harassment and which should not be tolerated including:

  • written or verbal comments of a sexual nature such as remarks about a colleague's appearance, questions about their sex life or offensive jokes;
  • displaying pornographic or explicit images;
  • sending or forwarding on emails that contain content of a sexual nature
  • unwanted physical contact and/or touching.

Importantly, an act can still be considered sexual harassment even if the alleged perpetrator didn't mean for it to be construed in this way. Sexual harassment also doesn't have to be intentionally directed at a specific person, and both one-off incidents as well as a prolonged campaigns of harassment can result in a complaint being brought.

The guidance also offers advice on how employers should make clear to workers which behaviours are and are not acceptable in the workplace, as well as how supervisors and managers should handle complaints in this area where they arise. In particular, employers should make it clear that the behaviours listed above will not be tolerated in their organisation under any circumstances. The guidance also recommends that employers have a clear procedure in place for reporting allegations of sexual harassment, whether current or historical.

Reporting sexual harassment

Talking about their experience is often a very sensitive and upsetting matter for any victim of sexual harassment regardless of gender. A victim's dignity will often have been severely affected or otherwise violated and they may have been placed into an intimidating, hostile, degrading or offensive working environment as a result. Workers should be supported, allowing them to voice concerns in the appropriate manner. All workers should be encouraged to report allegations of sexual harassment knowing that they will be dealt with confidentially and sensitively.

Where a worker experiences any form of harassment they should follow an employer's internal policies wherever possible. Those policies should also include recommendations of how victims should deal with any form of harassment from persons in a position of power or influence. For example, where a complaint is against a worker's supervisor, the worker should have a clear route to complain to a more senior manager. The policies should also confirm that all allegations will be taken very seriously and that perpetrators of sexual harassment will be dealt with in accordance with an employer's disciplinary policies and procedures as appropriate.

Workers should also be aware that sexual harassment which includes sexual assault or physical threats may be a criminal act and that they may wish to report matters to the police. In accordance with the duty of care owed to the workers in such cases, employers should provide appropriate support throughout and should continue with any internal investigation into complaints of sexual harassment in accordance with their own internal disciplinary procedure while the criminal investigations/proceedings are ongoing.

Historic allegations

From an employment litigation perspective, complaints of sexual harassment will generally only be considered by an employment tribunal where the worker issues a complaint within three months of the last act of harassment, and subject to compliance with the rules regarding ACAS Early Conciliation.

Following the recently published cases of sexual harassment in the news, there is a possibility that allegations of historic sexual harassment or abuse may now be brought to an employer's attention. Where this does happen, employers should take such complaints very seriously and investigate matters in a fair and sensitive manner, in accordance with their internal policies and procedures. Understanding what the desired outcome is from the outset will enable consideration to be given to resolving matters appropriately.

Summary

What remains very clear throughout all of this, is that all employers should take any and all complaints of sexual harassment very seriously, both in relation to the victim and any alleged perpetrator. The duty of care owed by an employer extends to all workers with both parties being treated fairly from the outset.