In this blog series, Astra Emir, practising barrister and author of Selwyn’s Law of Employment, explains what UK employment law says about some of the important issues faced by employers and employees.
An MP watching porn in the House of Commons and inappropriate comments made about the deputy leader of the Labour party’s legs: not even the place where our legislation is made appears to be immune from the issue of sexual harassment in the workplace.
Such harassment can take many forms, ranging from serious sexual assault like those committed by Harvey Weinstein, to sex-based comments that one party may find amusing “banter” but the recipient feels are degrading.
Some people at times find it difficult to distinguish between “I was only flirting” or “it’s just a harmless bit of fun’” and the affront to dignity and creation of a hostile working environment that many women (and men) feel that they are subjected to by such conduct, so it is important to know what the law actually says. Here we consider how the law defines sexual harassment and the defences employers and employees can have against a claim, as well as looking at what changes could be made in the future.
Prevalence of harassment
In 2020, the Government Equalities Office found that 29% of women had experienced at least one form of sexual harassment in the workplace the previous 12 months. This has not diminished with the increase in working from home—nearly one in two women who have experienced sexual harassment at work reported experiencing at least some of it online. 27% of men had also suffered such treatment, although the perpetrators against both were found more likely to be men.
Definition of harassment
The law is set out in section 26 of the Equality Act 2010. Sexual harassment is defined as “unwanted conduct specifically of a sexual nature or related to gender reassignment and has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant or violating his or her dignity.”
A single incident can give rise to harassment under this section and, if the conduct is of a sexual nature, the fact that similar treatment is meted out to men as well as to women is irrelevant, as is whether the conduct was intended to violate someone’s dignity or create a degrading environment.
When deciding whether such an environment has been created, the perception of the person making the complaint must be taken into account, as well as the other circumstances of the case, and whether it was reasonable for the conduct to have that effect.
The person does not have to be the direct recipient of the unwanted conduct. They could simply be witness to someone else’s harassment. If the environment at work is degrading, humiliating, hostile, threatening, or offensive it can be felt by all those working in it, even those who are not specifically the targets of the conduct, and the law allows such people to bring an action even if the direct victim chooses not to do so him- or herself.
Also, the conduct does not have to be directed at anyone in particular; for example, if an employer displays any material of a sexual nature, such as a topless calendar. This could amount to harassment of the employees if it makes the workplace an offensive place to work for any employee, whether male or female.
The law also protects someone who has previously rejected conduct of a sexual nature and because of this is treated worse than someone else; for example, they are then refused a promotion because of it.
It can be difficult at times to know where to draw the line between lawful and unlawful conduct, especially when the two sides may view the same incident in different ways. What is simple flirting to one person may be viewed by the subject of it as unwelcome and demeaning harassment. An invitation for a drink after work is hardly unlawful harassment, but it may become so if it is persisted in, or because of the language used or the manner in which it is made. Indeed it was reported that, to avoid this situation, Netflix at one point banned its employees for making eye contact for more than five seconds to avoid claims of harassment. This is an extreme method and may have repercussions for staff welfare but shows that many employers are concerned about what happens when people have a relationship at work. In the United States some firms have a “love contract” to regulate the position between co-workers and protect the employer from claims, and this is increasing in use in the UK. They have taken that route as a preferable option to forbidding relationships between employees.
It should be noted that bullying is a separate issue and not the same thing as harassment.
A person who has been harassed can bring a claim in the employment tribunal seeking compensation. This has to be within three months of the last act of harassment that they are complaining of.
It will be rare that an employee is sued for harassment rather than the employer, simply because it is the employer who will have the means to pay compensation. If they are, however, they can generally defend the case on the basis that either the events did not occur as claimed, or that they did not amount to harassment (because one or more of the elements of the section 26 definition set out above is missing).
There are two types of defence that the employer can use (assuming that harassment did take place):
(a) The employer can show that it took all reasonable steps to prevent the act from occurring and that it acted promptly to deal effectively with the complaint as soon as it was drawn to a manager’s attention.
If an employer has reason to believe that sexual harassment is taking place, it should investigate the matter and take action if necessary, without waiting for a formal complaint to be made. The employer should therefore have effective harassment policies and provide information and training to its staff.
(b) The employer can show that the act did not occur “during the course of employment.”
The law has a doctrine called “vicarious liability.” This means that the case can be brought against the employer as well as, or instead of, the actual perpetrator of the harassment, if it occurred during the course of that person’s employment. An employer can defend itself by claiming that vicarious liability does not apply in a particular case. There is a grey area where office parties and social events organised by employers are concerned, and they depend on the exact facts of each case, and whether the circumstances can be treated as an extension of the employment.
The future of harassment legislation
The main issue with the current law is that it relies on individual enforcement, but often people are too afraid to bring an action in the courts or feel that it won’t make any difference.
A 2018 report by the Women and Equalities Committee made a number of recommendations for change, such as imposing a mandatory duty on employers to protect employees from harassment, which would be punishable by fines, and a duty to conduct a risk assessment for sexual harassment. They also advocated laws making employers take reasonable steps to prevent third parties from harassing their staff. In 2019, the Government responded to a consultation on this but no action has yet been taken.
It is important to tackle this issue not only to protect people from harassment, but also because it affects the happiness of the workforce, and therefore productivity, so there is also an economic element involved. Indeed the TUC also suggests that, “The prevalence of sexual harassment in our workplaces contributes to persistent gender pay gaps as toxic workplace environments create significant barriers to women remaining and progressing at work and can deter women from particular roles or workplaces.” Thus, although women (and men) have an individual right to bring a claim, it is the overall picture that the legislature also needs to address.
Please note that this an overview of the law and is not intended to be legal advice, and each case depends on its own specific facts.