The Harvey Weinstein scandal has provided a platform for many women and men to speak out about sexual harassment they have been subjected to. From an employer’s point of view, it has brought into sharp focus the need to be alert to such behaviour by its employees, and consider its obligations in this regard.
What is sexual harassment?
In legal terms, sexual harassment is engaging in unwanted conduct of a sexual nature, that has the purpose or effect of either violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. This legal definition therefore covers conduct which was not intended to cause offence.
In deciding whether the conduct has the effect referred to above, there is an element of looking at the case from the subjective viewpoint of the complainant. If a claim is brought by a worker, an employment tribunal would take into account the perception of the person being harassed, all the surrounding circumstances of the case, and whether it is reasonable for the conduct to have that effect on the complainant.
There is an important caveat to this subjective analysis, in that there will be no harassment if the complainant is “hypersensitive”. In practice however, a high level of hypersensitivity would be required before this could act as a defence and employers should not assume that because, in their view, an employee who complains of feeling offended is being oversensitive, that they could not succeed in a claim.
What conduct can amount to sexual harassment?
Harassment can take a range of different forms and in the work place can range from sexual innuendo and inappropriate questions about relationships and casual physical contact, to overtly sexual gestures, inappropriate touching, making explicit sexual jokes, and looking at pornography.
Is it harassment if the complainant participates?
A person accused of harassment will often say that the complainant themselves was involved in the ‘banter’ or was flirting or has otherwise participated in a given situation. However, even where that is in fact the case, this does not mean that the unwanted conduct cannot still amount to harassment. A tribunal would still look at whether the conduct has the purpose or effect referred to above.
It may also be a relevant factor for consideration for a tribunal as to whether or not there is a culture of sexual banter and sexual behaviour in the workplace but again this is not conclusive, and just because a complainant may have been seen to be laughing along at inappropriate jokes or failing to object to the conduct, doesn’t mean that a claim for sexual harassment would fail. As the Harvey Weinstein scandal has highlighted, individuals who are harassed may not want to be seen to be offended in front of others, or may feel too intimidated to speak out.
Is an employer liable for actions of its employees?
Anything done by an employee in the course of their employment is treated as having been done by the employer. The employer is liable for harassment of its employees, by other employees (and, in some cases, by third parties), regardless of whether the harassment was done with the employer’s knowledge or approval.
What compensation could an employee recover?
The main remedy for a sexual harassment claim is compensation. The lowest award of injury to feelings is between £900 and £8,600, with compensation for more extreme cases of up to £42,900, and higher awards for exceptional cases.
In addition, if a claimant leaves employment due to sexual harassment, a tribunal can also award loss of earnings and benefits, including pension loss.
What can employers do to help protect itself and its employees?
It is important that employers have robust and up to date policies and procedures in place which cover equality and diversity, anti-bullying and harassment, grievances and disciplinary action. These need to be clear about the obligations of employees, the conduct which is not acceptable and the potential consequences of any employee being found to have submitted others to harassment (or any other type of discrimination).
It is not enough to have policies; an employer also needs to ensure that these policies are brought to the attention of employees and that training is provided. Specific training for managers can go a long way to helping protect the employer and employees in equipping managers to identify unacceptable conduct, in taking swift action and in being able to deal with grievance and disciplinary matters arising as a result.
An employer can avoid liability for harassment by one of its employees if it can show that, prior to the harassment occurring, it took “all reasonable steps” to prevent its employee from committing the discriminatory act or committing that type of discriminatory act. This is a high hurdle to overcome though, and employers need to be able to show extensive efforts (again, prior to the harassment occurring) in implementing robust policies, reviewing and updating policies, providing training to all employees and making them aware of the policies in place, and creating a culture free from discrimination.
Kathy Halliday is a partner at VWV, a national law firm with a growing office and presence in Birmingham. Kathy can be contacted on 0121 227 3711 or at firstname.lastname@example.org.