Employment law: Sexual harassment in the workplace

THE #MeToo campaign has had a profound influence on conduct in the workplace, and its impact has not diminished with high-profile cases keeping it front and centre in the public eye. Recently, actor James Franco was reported to have agreed to pay £1.6 million to settle a case in which he was accused of sexual misconduct.

Two students from the actor’s now defunct acting school claimed that they had been subjected to “sexually charged behaviour” and also fraud for paying for the school whilst Franco abused his position by sexually objectifying and intimidating them.

Sexual harassment is a form of unlawful discrimination under the Equality Act 2010. The Act defines it as “unwanted conduct of a sexual nature” which has the purpose or effect of violating dignity or “creating an intimidating, hostile, degrading, humiliating or offensive environment”. A wide range of behaviour can come under this definition, but common factors are the effect that the conduct has on the victim and that it is unwanted.

Inappropriate behaviour

The law protects not only employees and workers but contractors, the self-employed and job applicants. Sexual harassment is not something just women endure – it happens to men and people of any gender identity or sexual orientation. It can be carried out by those of the opposite sex, the same sex or anyone of any gender identity.

Sexual harassment can also be a one-off incident or an ongoing pattern of behaviour. Examples include:

• flirting, gesturing or making sexual remarks about someone's body, clothing or appearance asking questions about someone's sex life
• telling sexually offensive jokes
• making sexual comments or jokes about someone's sexual orientation or gender reassignment
• displaying or sharing pornographic or sexual images, or other sexual content
• touching someone against their will, for example hugging them
• sexual assault or rape.

Sexual harassment can occur in person or can take place through online means such as social media, email or messaging tools.

Banter or abuse

Employees need to be aware that each individual has their own take on what constitutes harassment. One person may regard certain discussions as ‘banter’, while another may consider it harassment of a sexual nature, which is unwanted, violates personal dignity and/or creates a hostile environment.

Employers have a responsibility to prevent sexual harassment occurring in the workplace and have a duty of care to their employees. Although an individual will be responsible for their own actions, employers can have vicarious liability, so it is important to have clear policies regarding the matter and to conduct regular training.

All complaints of sexual harassment should be taken very seriously and practices should:

• think very carefully about the way the complaint is handled to make sure it is done fairly and sensitively and the right procedures are followed
• tell everyone involved in the complaint what the process will be
• handle the complaint as quickly as possible.

Dealing with a complaint

The process for investigating and dealing with a complaint of sexual harassment should involve:

• Speaking to the employee. Get details and examples from the employee about their allegation. You must not base your response or subsequent actions on whether you believe the employee’s allegations or feel that the complaint is justified; you must take the person at their word and not impose your own views on the situation.
• Speaking to the individual(s) being complained about. Get their account and keep minutes of the conversation.
• Addressing the matter in line with your internal grievance procedure. This is a fact-finding exercise to explore who witnessed the incident, to get more information on what happened and to provide recorded evidence of your investigation. It is vital to ensure that you are seen to be taking the matter seriously.
• Providing an outcome to the grievance. If the complaint is dismissed, you must give the complainant the opportunity to appeal the decision. If upheld, the next step will be to follow your organisation’s disciplinary procedure.

Positive difference

Following the publication of a report by the Women and Equalities Select Committee in 2018, the Government carried out a consultation focusing on tackling sexual harassment in all its forms, which ran from July to October 2019. The Government’s response is to consider what fair treatment every employee should expect. They intend to take steps to prompt employers to do more, and to make "a positive difference" in this area, resulting in a safer workplace for all.

The main proposals arising from the consultation are:

• To introduce a duty requiring employers to take positive steps to prevent sexual harassment.
• To introduce new protections from third-party harassment.
• Extending the time limit for bringing Equality Act 2010 claims to the employment tribunal from the current three months from the date of the discriminatory conduct to six months, on grounds that this may allow greater access to justice.

The Government has confirmed that it intends to legislate to provide for the above changes as soon as possible, but no timetable has been announced at present.