The prevalence of workplace sexual harassment found by a recent report, and the strong line tribunals take against it, mean that employers need to tackle it proactively

A collaborative report conducted by the TUC and Everyday Sexism was published in July. It found that more than half of the 1,500 women surveyed said that they had been sexually harassed in the workplace. Often sexual harassment is described as “just a bit of banter” or “only a laugh”, but the systemic nature of this harassment is creating a wider issue for employers and is leaving a number of workplaces in an era which many had hoped were long forgotten.

What is sexual harassment?

A good place to start is for people to consider what sexual harassment actually is. The Equality Act 2010 states that sexual harassment occurs where “person A engages in unwanted conduct of a sexual nature and the conduct has the purpose or effect of either violating person B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for person B” (s 26(2)). In deciding whether the conduct has the effect referred to above, person B’s perception of the conduct, the other circumstances of the case and whether it was reasonable for the conduct to have that effect will all be taken into consideration.

The Equality and Human Rights Commission (EHRC) Code of Practice confirms that conduct “of a sexual nature” can cover verbal, non-verbal or physical conduct, including unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, displaying pornographic photographs or drawings, or sending emails with material of a sexual nature.

The TUC report

When published last month, the TUC report received a great deal of press coverage and discussion. The report found that 52% of all women polled had experienced some form of sexual harassment, and 35% of women had heard comments of a sexual nature being made about other women in the workplace.

In addition, 32% of women polled had been subject to unwelcome jokes of a sexual nature, and 28% had been subject to comments of a sexual nature about their body or clothes. Nearly one quarter of women surveyed had experienced unwanted touching (such as a hand on the knee or lower back), a fifth had experienced unwanted sexual advances, and more than one in 10 reported experiencing unwanted sexual touching or attempts to kiss them.

When considering these responses, two things become clear: the fact that so many women have been affected by sexual harassment at work, but also the question, would the statistics have been higher if a wider group of people had been surveyed?

Recommendations within the report were aimed at three groups; Government, employers and trade unions, with the abolition of employment tribunal (ET) fees being the first recommendation for the Government. The introduction of ET fees in 2013 has created an often insurmountable hurdle for women wishing to pursue a claim of sexual harassment. Having to pay employment tribunal fees of £1,200 to pursue a sex discrimination claim was, the TUC report concluded, pricing women out of justice. Claims to the ET fell by 76% between 2012-13 and 2014-15, meaning there may be little impetus for employers to address this issue.

The report recommended that employers have clear policies and a zero tolerance approach to sexual harassment, but also that they enforce the terms of the policies they have in place; a policy is useless if it is not followed and acted on. Appropriate training should be arranged for HR and all levels of management on sexual harassment, and what constitutes sexual harassment.

Finally, the report recommended that trade unions need to consider campaigns and raise awareness to ensure that women feel that they are able to report any complaints to their union member in the first instance.

Common myths and misconceptions

While the TUC report succeeded in raising awareness of the current and continuing problem of sexual harassment, it was only women who were surveyed. This may fuel the misconception that it is only women who can be sexually harassed. However, there is nothing to stop a man claiming sexual harassment by a woman, or even an individual claiming sexual harassment by someone of the same sex.

In addition, the report found that nearly one in five women polled was sexually harassed by a direct line manager or someone else with direct authority over them. While it may be commonplace for a perpetrator to be in a position of power over the victim, this is not always the case. There is nothing to stop an employee or group of employees from being liable for sexually harassing a manager. This could occur where a female manager is mostly managing men in a male-dominated workplace. In the ET case Fairbank v Royal Mail Group Ltd ET/2412403/09 and ET/2412403/09, the ET upheld a sexual harassment claim from the only female manager in a predominantly male environment. The male staff had carried out a campaign of bullying against the manager, which included one employee saying to her that “The only reasons you have got this job is because you have tits and a fanny.”

It is often thought that no sexual harassment exists where the victim does not complain; however employment tribunals recognise the fact that an employee is normally in an unequal relationship with the harasser and that it is a natural reaction not to wish to create further conflict. In fact, the TUC’s report found that four out of five women did not report the instances of sexual harassment to their employer. The Employment Appeal Tribunal (EAT) upheld a claim in Munchkins Restaurant Ltd v Karmazyn EAT/0359/09 that the restaurant manager sexually harassed four waitresses, even though the victims had put up with the manager’s behaviour over a period of time.

“It was only banter” is often cited as a defence to why conduct was not sexual harassment. However this defence is misplaced: employment tribunals are quick to reject arguments that sexist remarks are just banter. In fact, the EAT upheld a claim that a female manager had been subject to sexual harassment when she was seeking a promotion, when the head of her department had suggested she wear a short skirt and show plenty of cleavage if she wanted to do well in her interview (Driskel v Peninsula Business Services Ltd [2000] IRLR 151 (EAT)). This claim was successful even though the head of department thought his comments were banter. It is vital to remember that what really matters in sexual harassment cases is the effect that someone’s actions or words have on the victim.

The final misconception surrounding sexual harassment is that a one-off comment cannot be sexual harassment. A single act can fall within the definition of unwanted conducted under the Equality Act 2010, and an employer may be able to dismiss for gross misconduct on the basis of one comment which a victim felt was sexual harassment.

What to do?

The main point from case law and the TUC report is that businesses and individuals need to take steps to stamp out cases of sexual harassment. As mentioned above, employers need to take a zero tolerance approach. Making sure that appropriate policies are in place, for example a bullying and harassment policy and dignity at work policy, as well as ensuring these dovetail with the organisation’s disciplinary policy, would allow the employer to address the issue quickly. Furthermore, employees need to continue to report incidents of sexual harassment with the understanding that this will be addressed. If perpetrators continue to see that this behaviour will not be tolerated, then hopefully there will not be the need for a further report to be conducted by the TUC on this issue.

The Author
Marianne McJannett, associate and Eileen Barr, trainee solicitor, TC Young Solicitors
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