Wed, 01 Nov 2017
The news is currently awash with allegations of sexual harassment and sexual assault in the media and in politics. Commentators make the point that it is endemic and not confined to those sectors, but all places of work.
There is, of course, a wide range of conduct, ranging from inappropriate comments, to inappropriate physical contact, and ultimately to serious sexual assault and rape. Some conduct is one-off, whereas in other cases it is sustained. As an employment barrister, I’ve been involved in cases involving all these types of conduct. Sexual assault is a criminal offence, usually requiring a criminal investigation by the police. But what protections are there for victims from an employment law perspective? What should victims do? How should employers address these issues?
In the employment law context, the Equality Act 2010 (“EA 2010”) makes it unlawful to sexually harass employees, workers and agency staff. In fact, it covers a wide range of harassment including on the grounds of age, race, sexual orientation and disability. Claims are brought in the Employment Tribunal and the victim of harassment can bring a claim against the employer and the individual named perpetrator. There are strict time limits, with claims needing to be brought within 3 months of the last act of harassment, and after having contacted ACAS for Early Conciliation.
Under section 26 EA 2010, sexual harassment is defined as conduct related to sex which has the purpose or effect of violating the victim’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim, taking into account the victim’s perception, all other circumstances of the case, and whether it is reasonable for the conduct to have that effect. So, there is a subjective and objective element to it.
In Richmond Pharmacology v Dhaliwal  IRLR 336, the Employment Appeal Tribunal clarified the law and stated that the approach to be taken to harassment claims should be broadly the same, regardless of the particular form of discrimination in issue. The EAT observed that, in each context, “harassment” is now specifically defined in a way that focuses on these elements:
a. unwanted conduct;
b. having the purpose or effect of either:
i. violating the individual's dignity; or
ii. creating an adverse environment for the victim;
c. related to the prohibited grounds (i.e. of sex, race and so on).
What if the victim has engaged in “banter”?
It is quite common for perpetrators to argue that the victim participated in the conduct complained about because they engaged in “banter”. However, the fact that an employee engages in “banter” is not a defence. In the EAT case of Smith v Ideal Shopping Direct Ltd UKEAT/0590/12, the claimant was openly gay and would engage in a certain amount of banter, e.g. referring to himself as 'Big gay Wayne'. However, rather more pointed remarks about his homosexuality started to be used by other employees. One highlighted in the case was the reference to him with some regularity as 'Val's bitch' (Val being his line manager). After his dismissal he brought tribunal proceedings for harassment. The tribunal rejected the harassment claim. They accepted that in isolation the words used would be homophobic, but held that this was outweighed by his own participation in the language used generally. However, the EAT disagreed with the Tribunal on this point, holding that, although, in principle, a person may not be able to object to conduct that they have willingly participated in, there can still be a line to be drawn when the conduct (here language) goes beyond what that individual was agreeing to.
What if the conduct wasn’t directed at the victim?
Provided the other requirements are met, the conduct in question does not even have to be specifically directed at the complainant. In Moonsar v Fiveways Express Transport Ltd  IRLR 9, EAT, the downloading of pornographic images by Ms Moonsar's male colleagues, who viewed them in her presence, was held to be sufficient to amount to unwanted conduct, as the images were viewed on screens in a room where she worked and she was aware of what was happening, even though it was not directed at her. Therefore, although the “purpose” was not to violate her dignity, the “effect” of it did. This deals with the sort of behaviour sometime described as “locker room banter” where the victim is not specifically targeted.
What should the victim do?
In any case where someone has been harassed it is important that they raise this with the employer. Most reputable employers will have Grievance and Anti-Bullying and Harassment policies to investigate concerns.
The employee should consider speaking to any confidential advice lines. Many employers offer access to such services.
In cases involving sexual assault, they need to consider reporting matters to the Police.
Ultimately, they may wish to claim compensation in the Employment Tribunal. To do so, they must bring their claim within 3 months of the last act of harassment, and contact ACAS for Early Conciliation.
What should the employer do?
The first consideration should be to ensure that policies are up-to-date and fit for purpose to investigate concerns and deal with cases where harassment is found.
Employers should train their staff on equal opportunities, and in particular what constitutes unacceptable behaviour in the workplace.
Employers should also consider whether someone from the workforce should be appointed (perhaps with an HR background) as a “Anti-Harassment Guardian”, as a person that staff can go to if they have concerns or wish to raise a complaint.
Finally, employers need to investigate concerns and take appropriate action. There is no room for harassment in the workplace. Employers need to take proactive steps to ensure that any such behaviour is no longer tolerated.
Employment Law Group