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It is astonishing that despite widespread reporting of high-profile cases of sexual harassment in the media, that cases of sexual harassment in the workplace continue to be on the rise.
It may be that workers feel more able or empowered to raise these issues rather than there being an increase in them occurring. However, the fact that regardless of well publicised incidents and condemnation for such conduct is widespread but such incidents continue to occur should be a concern to employers.
Who can experience sexual harassment in the workplace?
Claims are also no longer limited to being from junior employees against their superiors or claims from women in respect of their treatment from male colleagues. While these scenarios continue to occur, there is also an increase in men raising sexual harassment claims as well as senior managers/ directors being the target of sexual harassment by more junior members of staff.
Individuals who overhear sexual harassment or witness such incidents are also more willing to report them.
In addition, employees are aware of the need for evidence and usually when a grievance is raised they are armed with a ‘diary’ of incidents, as well as the additional risk that sexual harassment can be easily recorded on the ever ready mobile telephones. Such situations can be greatly distressing for both a victim as well as the alleged accused.
As a result there continues to be a need to inform and educate all employees, workers, and management at every level of what amounts to sexual harassment, individual’s rights when they believe they are being sexually harassed and steps that should be taken by employers if allegations are raised in the work place.
We have set out some Q and A’s below by way of general guidance only:
What is sexual harassment in the workplace?
Sexual harassment is technically ‘unwanted conduct of a sexual nature’.
An individual’s conduct will amount to sexual harassment if it is: of a sexual nature; unwanted, and violates an individual’s dignity, or creates a hostile, degrading, humiliating or offensive environment for them.
It can come for example in the form of: unwanted touching of any kind; a compliment; flirting or sexually suggestive remarks; asking questions or making comments about an individual’s sex life; sexual jokes, whether these are made to an individual or about them; and displaying or sharing sexual images or videos
Sexual harassment does not have to occur in-person – it can take a format of an email, video or posted on social media. It also does not have to be sustained over a period of time: even one incident can suffice.
Who is protected against workplace sexual harassment?
Almost every individual connected with a workplace is protected. The Equality Act protects employees, workers, contractors, self-employed individuals and job applicants.
There is also no minimum period of continuous employment that is required before a sexual harassment claim can be brought by a protected individual.
What is the difference between sexual harassment, and harassment related to sex?
Sexual harassment constitutes conduct of an unwanted sexual nature.
By contrast, harassment related to sex occurs when an individual is harassed because of their sex (e.g. the fact that they are a woman/ man).
It is often the case that these types of harassment occur at the same time.
Similarly, harassment related to gender reassignment or sexual orientation is different to sexual harassment, but can occur alongside sexual harassment.
What steps should employers take to prevent sexual harassment?
Employers have a responsibility to ensure that sexual harassment does not occur at their workplace. Although there are no specific requirements as to how to do this, common steps include:
Providing training to staff on how to prevent, recognise and tackle incidents of sexual harassment.
Having a sexual harassment policy, or ensuring that any existing policies are consistent in aiming to prevent sexual harassment. However, employers must ensure that employees and workers are fully acquainted with such policies.
Providing internal support and advice services to those who have experienced, or wish to report, sexual harassment.
Employers must also follow a comprehensive and fair investigation procedure in a sensitive manner if any complaints of sexual harassment are raised. In most cases of where a complaint of sexual harassment is raised it is advisable to take legal advice to ensure all appropriate steps are taken.
Is ‘ banter’ a defence to sexual harassment?
Absolutely not. You often hear this being put forward as a defence or as justification but this is irrelevant to a finding of whether sexual harassment has taken place. As stated above conduct will amount to sexual harassment if it is (a) of a sexual nature, (b) unwanted and (c) violates an individual’s dignity, or creates a hostile, degrading, humiliating or offensive environment for them.
What steps should an employee take if they are experiencing sexual harassment at work?
Before raising a complaint, an employee may want to take some initial advice or seek support from ACAS, their union representative, or a solicitor.
Employers may have a specific sexual harassment policy, which will guide you on the steps that you need to take to raise a complaint informally or formally. If not, all employers should have a general grievance policy which employees can also use to bring complaints of sexual harassment.
The first formal step is usually to report allegations of sexual harassment through a written complaint to your employer. Many companies have HR departments that deal with complaints made by employees.
Employers should address any complaint raised seriously and seek to resolve any issues fairly and sensitively. If an employee is not satisfied with the outcome they can raise a formal grievance if previously it was raised informally or appeal against the outcome of a formal complaint.
If you need further guidance or advice on this subject please contact our Employment Team on 0161 832 3304 or e-mail firstname.lastname@example.org