If you have been following media coverage of the sexual harassment scandals, from Weinstein to Westminster to who knows where by the time you read this, you will have heard a lot of opinion, misinformation and, to put it bluntly, nonsense. Even veteran broadcaster, Jonathan Dimbleby, was somewhat misleading on Radio 4’s Any Questions this weekend when he stated that sexual harassment was a criminal offence under the Equality Act. Yes, it is unlawful but any claims under the Equality Act 2010 for workplace harassment would be brought as a civil law claim via the Employment Tribunal.
This is not an opinion piece; don’t get me started..! It is an attempt to set out what the law, as it currently stands, says about sexual harassment in the workplace. I've also included at the end of the piece a Q&A based on some of the questions our employment solicitors have been asked in recent weeks.
“If only we knew what the definition of sexual harassment was”, I heard one commentator say, indignant to learn that he should not slide his hands around the waist of his colleague while waiting for the photocopier. Well, we have one. In fact, we’ve had one for many years and the most recent definition of sexual harassment in the workplace is set out in Section 26 of The Equality Act. The first part of the definition looks like this:
Sexual harassment occurs where:
- A engages in unwanted conduct of a sexual nature; and
- The conduct has the purpose or effect of either violating B's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (My bold).
All clear then? As with all areas of law we look to the Judgments of the courts (what lawyers call ‘case law’) to help us interpret the wording of the Act. The Equalities and Human Rights Commission has also produced “The EHRC Employment Statutory Code of Practice” (The EHRC Code) which gives guidance on how to interpret The Equality Act.
Employment Tribunals must take this into Code into account when deciding discrimination and harassment cases. It might help to break down the various elements in The Equality Act’s definition of sexual harassment so here we go.
What is “unwanted” conduct of a sexual nature? (Or, to put it another way, what on earth is this “inappropriate conduct” we keep hearing about?)
The EHRC Code describes it as any unwanted verbal, non-verbal or physical conduct of a sexual nature. Beside fairly obvious forms of sexual assault, it can also include those types of behaviour that so many of our MPs are currently being accused of: unwelcome sexual advances, touching, sexual jokes, displaying pornographic photographs or drawings or sending emails with material of a sexual nature.
A single one off incident can be enough to constitute harassment under The Equality Act so that covers the now infamous parliamentary “touching of the knee”. (Note that this differs from complaints brought under the Protection from Harassment Act 1987 (PHA) where at least two incidents are required. More on the PHA later).
There is no need for B to have already made it clear that A's conduct is unwanted in order for it to constitute harassment. In Insitu Cleaning Co v Heads  IRLR 4, the employer's argument that a man could not know whether his conduct was unwanted until it had been rejected, failed. The Employment Appeal Tribunal (EAT) said that would-be harassers cannot be allowed to "test the water" with impunity to see whether their conduct was objectionable to potential victims.
This brings us to that old chestnut, ‘it was just a bit of harmless banter. He or she mustn’t have minded because he or she flirted back’. In Munchkins Restaurant Ltd and another v Karmazyn and others UKEAT/0359/09 the EAT recognised that putting up with unwanted conduct for years does not mean that it was welcomed. It also accepted that the four claimant waitresses initiated sexual “banter” themselves as a “coping strategy”.
Throughout their employment the waitresses were made to wear short skirts and the male restaurant owner would regularly ask them about their sex lives. They admitted that they would sometimes ask him about his own sex life because they found that this made him easier to handle. The assistant manager, a female, would act as a buffer between the waitresses and the owner enabling them to maintain what the EAT described as “an equilibrium at work”. When the assistant manager left the waitresses found their working life became intolerable and they resigned and claimed constructive dismissal and sexual harassment. Their claims succeeded and the Tribunal awarded them £15,000 each in compensation.
Munchkins appealed to the EAT saying that it was “perverse” to find that the conduct was “unwanted” when they themselves had initiated some of the sexual banter. The EAT rejected Munchkin’s appeal. The Tribunal had been entitled to accept the evidence of the waitresses that it was a tactic used to divert attention away from their own sex lives. The EAT compared their situation to those of battered wives who put up with violence even though it is unwelcome, commenting that “putting up with it does not make it welcome”. The EAT had taken into account that the waitresses were migrant workers, in a precarious financial position and with no certainty of continued employment.
This Judgment is now almost ten years old and clearly demonstrates that the courts had already come to the view expressed by so many commenters today: that sexual harassment is about power and the abuse of power. It is never “flattering” as I heard in one misguided comment this weekend.
What does “purpose or effect” mean?
If the unwanted conduct has the purpose of either violating B's dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for B, nothing more is required. This will amount to harassment. (And in those cases where the harasser has intentionally done something, at least twice, which they know is “oppressive and unacceptable” and has caused the victim alarm or distress the PHA may be the best course of action, or a complaint to the police). But what about those cases where the potential harasser says he or she did not mean to cause any offence? Is that a good enough excuse? Most times not. Here is another example taken from the EHRC Code:
Example: Male members of staff download pornographic images on to their computers in an office where a woman works. She may make a claim for harassment if she is aware that the images are being downloaded and the effect of this is to create a hostile and humiliating environment for her. In this situation, it is irrelevant that the male members of staff did not have the purpose of upsetting the woman, and that they merely considered the downloading of images as ‘having a laugh’. Para 7.17 EHRC Code.
The question of whether the unwanted conduct has the effect of violating dignity or creating an adverse environment is, to an extent, assessed from B’s subjective point of view. How does the victim feel about what has happened to him or her? But there is an important caveat under Section 26 (4) which says that all of the following must be taken into account:
- The perception of B.
- The other circumstances of the case.
- Whether it is reasonable for the conduct to have that effect.
Note especially that third point about ‘reasonableness’. In order to bring a successful harassment claim based on allegedly offensive conduct the victim must reasonably feel or perceive that his or her dignity has been violated or an adverse environment has been created. In reaching a decision a tribunal should keep in mind whether the victim genuinely held that feeling or perception.
What’s more, if the tribunal believes that the claimant was unreasonably prone to take offence then, even if she (or he) did genuinely feel that her dignity had been violated, there would be no harassment under the Act.
This concept of the so called "hypersensitive" claimant was considered at length in the case of Richmond Pharmacology v Dhaliwal  IRLR 336. This was a pre-Equality Act case decided under the Race Relations Act 1976. The claimant was an Indian employee who claimed that her dignity was being violated by a one off comment made by a colleague who said that she would “soon be married off in India". The case was not about sexual harassment but the comments made by the EAT about what is “reasonable” to regard as harassment are still relevant to all types of harassment claims today.
The EAT said that it is “important not to encourage a culture of hypersensitivity or the imposition of legal liability in every unfortunate phrase”. It also emphasised that "violating" is a strong word which should not be used lightly. Offending against dignity or hurting it, is insufficient. (Incidentally the EAT did decide that this one off comment which stereotyped her nationality did “violate her dignity” although the level of compensation she was awarded for her “injury to feelings” was at the lower level in the scale of awards).
Rejection of or submission to conduct of a sexual nature
The other key part of Section 26 looks like this:
A also harasses B if—
- A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex,
- the conduct has the purpose or effect referred to (above)
- because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.
Here are two more examples from the EHRC Code:
Example: A shopkeeper propositions one of these shop assistants. She rejects his advances and is then turned down for promotion which she believed she would have got if she had accepted her bosses advances. The shop assistant would have claim for harassment. Para 7.14 EHRC Code
Under this type of harassment, it can even be another person who treats the victim less favourably, not just the individual who harassed him or her in the first place.
Example: A female worker is asked out by her team leader and she refuses. The team leader feels resentful and informs the Head of Division about the rejection. The Head of Division subsequently fails to give the female worker the promotion she applies for, even though she is the best candidate. She knows that the team leader and the Head of Division are good friends and believes that her refusal to go out with the team leader influenced the Head of Division’s decision. She could have a claim of harassment over the Head of Division’s actions. Para 7.15 EHRC Code
Equally, an employee may succeed in a claim for sexual harassment when a consensual relationship ends and the other party's conduct becomes unwanted. For example, in A v Chief Constable of West Midlands Police UKEAT/0313/14 the EAT upheld a tribunal's decision that an employee had been sexually harassed for two days after an 18-month relationship with her work colleague ended.
We hope you have found this outline of this complex and controversial subject helpful.
Read on to the Q&A section for further information on an employer’s vicarious liability for discrimination and harassment; the employer’s reasonable steps defence; what “in the course of employment” means; protection against victimisation; the legally binding nature of settlement agreements and more.
Here are a few of the questions we’ve been asked since the media storm over sexual harassment hit the headlines.
Q: I’m a manager with a young close knit team and I like to take them out for after work drinks. Is it too risky to do that now in this current climate?
A: There is always the risk of bad behaviour of all kinds when alcohol is involved and the employer company is vicariously liable for the harassment or other acts of discrimination committed by an employee “in the course of employment”.
The dividing line becomes blurred with conduct that occurs off the employer's premises and out of normal working hours, particularly at social gatherings. Informal drinks with colleagues in the pub immediately at work will, in most cases, be considered an extension of employment. That means the organisation will be liable for any sexual harassment that goes on over the espresso martinis or pints of larger.
Under Section 109 of The Equality Act the employer does have a “reasonable steps” defence if it has taken all reasonable steps to prevent discrimination and harassment happening in the first place. (For example, measures such as having an anti-harassment and bullying policy that is properly enforced and equal opportunities training).
It would be a shame to discourage after work drinks if it’s good for team spirit. As long as the company has got its “reasonable steps” defence in order I’d say there should be nothing to stop you from taking them out. At the same time, managers might want to think of other ways to boost employee engagement that won’t exclude colleagues who don’t go to the pub because they don’t drink, they can’t afford to drink, they have to dash home to look after dependants or they don’t go into bars for religious reasons.
Q: I brought a claim against my boss for sexual harassment but we settled it out of court. I got compensation but both my boss and the company refused to admit any wrong doing and I signed a settlement agreement saying I would keep everything confidential. Now I’ve seen some of my ex female colleagues sign up to the “me too” hash tag and I want to say what happened to me. Is it now acceptable for me to do that?
A: That is entirely a matter for you but remember that the terms of the settlement agreement are legally binding and you and your legal adviser would have signed it to say you had been given independent legal advice and you understood what you were signing up to. If you breach the confidentiality terms there is a very real risk that your ex-employer and/or your ex-boss will make a legal claim against you to pay all of your compensation money back, plus their legal costs. The only time a settlement agreement can be set aside is if one party can prove they signed it under duress. This will usually be very difficult to prove.
Q: I'm dating somebody from work. Is that going to get me in trouble if my bosses find out?
A: You have a right to a private life under Article 8 of the European Convention on Human Rights. Providing you remain professional at work I would say it is none of your employer’s business. The situation could change though if one of you is promoted and has to make business decisions affecting the other. In those circumstances you should tell your own line managers there could be a potential conflict of interest. Even if you feel sure you could avoid the sort of claims I outline above (rejection of or submission to conduct of a sexual nature) others might accuse you of treating your girlfriend or boyfriend more favourably than others. That’s why I would advise you to let your own line managers know so that conflicts - or the appearance of conflicts of interest - can be avoided.
Q: I'm about to be promoted and somebody I used to go out with from work now has to report to me. Does this present any danger for me?
A: Potentially yes. See my comments to the question above. If you are going to be in a position where you need to subject this individual to some sort of unfavourable treatment, e.g. challenge their performance, select them for redundancy, discipline them for misconduct or refuse their holiday request, you’d better be sure you have all the evidence to justify your decision. Safest of all try to keep out of the decision making process all together or as best you can.
Q: I'm a male manager and I work for a really friendly open company with offices spread around the country. When we get together and I meet female colleagues I haven’t seen for a while I often give them a peck on the cheek. It’s perfectly innocent and everybody else does it. Is that now going to get me in trouble?
A: It shouldn’t if it’s innocently done as a normal social greeting that’s common place in your work environment. Note my comments above on the Dhaliwal case and how the courts approach the question of reasonableness in harassment claims. As usual in law, much will depend on all the circumstances in the case.
Q: I want to support a colleague’s complaint against a manager who has been sexually harassing him but I’m really worried this manager will punish me for doing so and my own job will be at risk.
A: Sadly this does happen which is why the Equality Act includes the right for individuals to bring a separate victimisation claim under Section 27. The claim can be brought by individuals who have been “subjected to a detriment” by their employer either because they have made a complaint under The Equality Act (“a protected act”) or have supported somebody else making a protected act. This means you would be protected if you decide to help your colleague.
Q: I’m an employer and I'm fairly certain that one of my employees is making false accusations of sexual harassment against one of her colleagues.
A: In most cases deliberately making false accusations like this could justify a gross misconduct dismissal or some other serious sanction. What’s more the Victimisation protections in section 27 do not apply to employees who make false accusations in bad faith. If you plan to discipline her though you better make sure you follow a scrupulously fair disciplinary procedure or she could pursue an unfair dismissal claim.
Article written by Deborah Scales, Employment Solicitor.