The recent allegations about Russell Brand and the ongoing saga involving Luis Rubiales illustrate why it is important for employers to be vigilant about sexual harassment in the workplace and to ensure that allegations are dealt with properly.
The legal definition of sexual harassment is when a man or woman is subject to unwanted verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of either violating the person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Conduct of a sexual nature can include unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, as well as things like displaying pornographic photographs or drawings or sending emails with material of a sexual nature.
Sexual harassment can lead to claims being made in the Employment Tribunal under the Equality Act 2010, and an employer may be vicariously liable for the actions of the harasser. Vicarious liability is a legal term which deals with the situation where someone is held responsible for someone else’s actions. Generally, an employer will be liable for the acts of its employees, provided the relevant acts are done in the course of their employment. However, individual employees can also be personally liable for acts of sexual harassment too. There is no cap on the compensation that can be awarded for sexual harassment claims.
Ensure a fair investigation
Any grievance or complaint raised by an employee should be properly investigated, but complaints of sexual harassment require a particular level of sensitivity, caution and discretion due to their subject matter. Due to the nature of these kinds of allegations it can be worth considering appointing an external investigator if your organisation lacks sufficient resources or expertise internally.
It may be appropriate for the alleged perpetrator to be suspended while the investigation is undertaken, but employers should also consider whether other options such as temporary relocation or redeployment might be possible. If the employee is suspended then the period of suspension should be kept to a minimum.
Important points to be aware of
Despite what some people believe, ‘banter’ is capable of amounting to sexual harassment. The Employment Tribunals have frequently rejected employers’ attempts to defend sexual harassment claims by saying that it was only ‘banter’, or by trying to defend claims with evidence that the employee bringing the claim also participated in similar comments. For example, in the Employment Tribunal case of Smith v Renrod Ltd (2015), Miss Smith was employed as a sales executive in a car dealership and claimed she had been sexually harassed by her manager, who had made comments to her which were of a sexual nature. The Employment Tribunal concluded that there was a culture of sexual banter in the workplace in which both Miss Smith and her manager actively participated, and that Miss Smith had not been shocked by the day to day banter between colleagues.
However, it found that the comments made by her manager did go too far. While the Employment Tribunal found that Miss Smith was relatively robust and not adverse to participating in, or even initiating, sexual banter on some occasions, the conduct and comments of her manager still went beyond what was acceptable to her and therefore amounted to harassment within the legal definition.
It may not be necessary for a victim of sexual harassment to have previously complained about the behaviour. Employment Tribunals recognise that the employee is normally in an unequal relationship with the harasser, and that it is a natural reaction not to wish to create further conflict for fear of losing their job. In Munchkins Restaurant and another v Karmazyn and others (2009), the Employment Appeal Tribunal upheld a claim that a restaurant manager had sexually harassed four waitresses. This was despite the waitresses putting up with the conduct for some time, and even initiating talk of a sexual nature as a method of coping with his behaviour.
It is also possible for an individual to claim sexual harassment even when the offending remark or action is not directed at that person. For example, a woman who overhears a sexist remark could bring a sexual harassment case, even if the person who made the comment did not realise that she was listening at the time.
What can employers do to help prevent sexual harassment claims?
Employers should make it clear that sexual harassment in the workplace is unacceptable, and a statement to that effect should be included in your equality policy. You should also make clear how incidents of sexual harassment can be reported.
However, we recommend organisations go further than this and provide training to all employees about avoiding discrimination and harassment, as well as training managers on how to deal with situations where sexual harassment is involved (and/or other forms of discrimination).
Employers should act quickly to stop banter or behaviour that is getting out of hand. The first step could be informally speaking with the employee or employees who are engaged in the behaviour to ask them to stop (and commencing a disciplinary process if they do not stop).
Complaints about sexual harassment should never be ignored and should be dealt with in a timely and reasonable way so as to be fair to both the alleged victim and the alleged perpetrator. It is also crucial to ensure that all staff are aware of your equality policy and that discriminatory behaviour will not be tolerated. Ensuring this awareness could prove crucial in your defence against a discrimination claim. Even better, you could offer equality training to your staff – please contact us if we can help with this.
If you are dealing with an allegation of sexual harassment in the workplace, then we can help.
Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.