Employers must do all they reasonably can to protect staff from sexual harassment and take steps to prevent it happening.
Sexual harassment is unwanted behaviour of a sexual nature and must have either:
- violated someone’s dignity, whether it was intended or not
- created a hostile environment for them, whether it was intended or not
The law protects the following people against sexual harassment at work:
- employees and workers
- contractors and self-employed people hired to personally do the work
- job applicants
Anyone who sexually harasses someone at work is responsible for their own actions but employers can be responsible too through vicarious liability. Employers should do all they can to try to prevent sexual harassment in the first place and have a ‘duty of care’ to look after the well being of their employees. Where an employer does not do this, it could be a serious breach of an employee’s employment contract. Should an employee then feel they have no choice but to resign because of it, the employer could face a claim of constructive dismissal.
All complaints of sexual harassment should be taken very seriously and employers should handle any investigation in a way that’s fair and sensitive to all those involved including the person who made the complaint, the person accused and anyone who has witnessed the harassment:
Sexual harassment can be a one-off incident or an ongoing pattern of behaviour.
- 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
What some people might consider as joking, ‘banter’ or part of their workplace culture is still sexual harassment if:
- the behaviour is of a sexual nature
- it’s unwanted
- it violates someone’s dignity or creates a hostile environment for them
Sexual harassment is usually directed at an individual, but it’s not always the case. Sometimes there can be a culture of sexual harassment in a workplace that’s not specifically aimed at one person, for example sharing sexual images. In this situation a complaint of sexual harassment could still be made.
Employers should aim to have a culture of zero tolerance to make sure that sexual harassment does not happen in the workplace. It is good practice to have a specific policy covering sexual harassment making clear what type of behaviour may be considered sexual harassment and the Company’s zero tolerance of such behaviour including the potential consequences for anyone found to have breached this policy.
Sexual harassment can happen to anyone, male or female, at any level of an organisation and harassment can be by people of the same or opposite sex. Once a complaint has been made it should be investigated and any action taken should be in line with the Company Disciplinary policy. It is therefore important that all policies align with regard to sexual harassment for example the Social Media policy should reference zero tolerance of sexual harassment at work including on personal devices.
Where serious cases of sexual assault or physical threats are made the police should be informed. The employer should still follow its disciplinary procedure without waiting for the outcome of any criminal proceedings unless this cannot be completed fairly.
In addition to ensuring the correct policies are in place employers should provide adequate training to everyone, ideally at the start of employment, on recognising and understanding sexual harassment. It is also important to ensure that there are managers trained to advise people who are considering making a sexual harassment complaint.
The experience of sexual harassment is an extremely difficult situation for an employee to face and employees are protected from sexual harassment in both employment law and criminal law, dependant on the seriousness of the case.
Employers who seek advice on writing policy or dealing with allegations of sexual harassment should consult an employment law advisor and read the ACAS guidelines.