Sexual harassment is unwelcome sexual behaviour which either violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them. Sexual harassment also describes situations in which people are treated less favourably because they either submit to or reject sexual conduct.
Harassment may be verbal, non-verbal or physical
Verbal: Name calling with a sexual theme, comments about appearance and attractiveness, questions about sex life, comments and bragging about perpetrators own sexual activities, pestering to go on dates or engage in sexual conduct and making inappropriate sexually themed jokes.
Non-verbal: Putting up sexually themed photographs or calendars, sharing or watching pornographic images, buying unwanted gifts, sending suggestive emails.
Physical: Any unwanted touching of a sexual nature such as bottom pinching, deliberately brushing past a person and groping.
Rejection of or submission to sexual conduct
Where a person turns down or engages in sexual conduct then any treatment that they receive as a result might be considered harassment.
For example, a person who refuses to date the boss and is then turned down for a promotion or ridiculed or teased as a result is being harassed on the basis of their rejection of sexual conduct.
Equally, a person who is in a sexual relationship with a colleague and then is treated badly when the relationship ends would be considered to have been treated badly as a result of submitting to sexual conduct.
Who is covered?
In a work context any worker or job applicant is protected from sexual harassment. Men, women or those undergoing gender reassignment may be sexually harassed. A victim can be harassed by a colleague, manager or subordinate.
Where can harassment occur?
In a work context, anything which happens within working hours, either in the normal place of work or at training, conferences, at hospitality events and office parties would count as harassment. Harassment that happens immediately after work (such as after work drinks) can also be included particularly, but not exclusively if there is some obligation to attend.
Who is liable for harassment?
Obviously the perpetrator of the harassment is liable but an employer can also be liable where harassment has occurred in a work context.
Employers do not need to be aware of sexual harassment to be liable for it. There is however a defence which is that if the employer has taken all reasonable steps to prevent harassment then they cannot be deemed responsible for it. This means taking complaints of harassment seriously and having policies and training in place to prevent harassment and teach managers how to spot it and deal with it.
What if harassment was not intended?
For the most part, intention is irrelevant. The key to harassment is the perception of the victim. One person’s amusing anecdote and banter may be highly offensive to another person. Tribunals will take into account the perception of a victim, the circumstances of the case and whether it is reasonable for a person to be offended by the conduct of which they complain.
Accepting Sexual Harassment
Although a single remark can constitute harassment, most claimants have attempted to laugh off or ignore a certain degree of sexual harassment before they take steps to deal with it. Tribunals, understanding the vulnerable position of victims, are willing to ignore a degree of what might be considered complicity on the part of an employee.
The case of Munchkins Restaurant Ltd and another v Karmazyn and others UKEAT/0359/09 illustrates the point that claimants can put up with harassment for a long period before complaining about it or even join in and instigate conversation of a sexual nature.
In this case, a number of waitresses resigned from the restaurant in which they worked claiming sexual harassment going back over a long period by their manager, Mr Moss. They claimed that they were forced to wear skirts that they felt were too short, that sexual books were left lying around, that their manager showed them sexual images and sex toy catalogues and tried to engage them in conversations of a sexual nature. There was a factual dispute between the parties as to whether the comments had been welcome or unwelcome. The tribunal accepted that at least two of the waitresses may have initiated sexual conversations but that they had done so as a means of dealing with Mr Moss who was hot tempered and would become angry if they refused to answer his questions or walked away.