Using the hashtags #MeToo and #MenToo, thousands of women and men have spoken out about their experiences of sexual harassment and assault, many related to the workplace. The allegations involving high-profile individuals have demonstrated just how widespread the problem is across all types of professions and industries.
Much of the improper behaviour alleged has been unlawful in the workplace for many years. It remains to be seen if the confidence that the #MeToo movement is inspiring in victims of such unlawful sexual advances, alongside the recent end of the requirement to pay tribunal fees to bring claims, will translate into an increase in legal action.
Why should employers be concerned?
Anything done by an employee in the course of their employment is treated as being done by the employer – the employer may be ‘vicariously’ liable for an act of unlawful harassment by one employee against another in the course of employment.
The Equality Act 2010 provides that the following forms of harassment are unlawful:
- unwanted conduct related to sex or conduct of a sexual nature that has the purpose or effect of violating that person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them; and
- less favourable treatment because the employee has rejected or submitted to such conduct.
In considering the ‘effect’ of the conduct, the tribunal will take into account the following factors:
- the employee’s perception of the conduct;
- the circumstances of the case; and
- whether it is reasonable for that conduct to have that effect.
The Equality and Human Rights Commission Code makes it clear that ‘conduct’ in this context can be any unwanted verbal, non-verbal or physical conduct of a sexual nature and can include unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, displaying pornographic photographs or drawings or sending emails with material of a sexual nature.
Employers should note that a single incident can be sufficient to constitute harassment. If the conduct is serious enough to be reasonably considered as harassment, there may be no need for the victim to have already made it clear that the conduct is unwarranted. The Employment Appeal Tribunal has said that would-be harassers should not be allowed to ‘test the water’ with impunity.
Whether an act amounts to harassment may be a fine line in many cases. The fact that an employee has put up with such conduct, or taken part in such ‘banter’, will not necessarily show that the conduct is wanted – this may be a coping strategy, as the tribunal has found. Furthermore, harassment may occur at the end of a consensual relationship if conduct becomes unwanted.
What can businesses do?
Employers will be expected to demonstrate that they took ‘reasonable steps’ to prevent such conduct. These might include:
- providing training for employees (including managers and supervisors) on appropriate behaviour at work, including in relation to equal opportunities and harassment;
- having an equal opportunities policy and an anti-harassment and bullying policy;
- regularly reviewing and updating those policies;
- making those policies known to employees and providing training where necessary;
- applying and implementing the policies appropriately and consistently;
- ensuring employees know how to raise issues – informally and formally – perhaps by providing a confidential reporting line;
- making sure that steps are taken to address complaints promptly and reasonably; and
- taking disciplinary action where appropriate.
Clare Gilroy-Scott is a partner in the London employment law team at Goodman Derrick