In this article, Kathy Daniels, employment law author and lecturer, looks at the legal aspects of managing allegations of sexual harassment.
Sexual harassment has become big news. Allegations in the film industry of very inappropriate behaviour seem to have given confidence to employees across a number of other sectors to speak out about what has happened to them. As an employer, what do you need to do to address sexual harassment claims, and what are the legal issues you need to be aware of?
An important starting point is to look at the definition of harassment in the Equality Act 2010. It is defined as:
Unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.
There are a number of important points that we need to note from this definition.
First, it does not matter whether the harasser intended to cause any offence, or to harass. The focus is on the purpose or effect of the individual’s behaviour.
In the case of Urbanska-Kopowska v McIlroy and another t/a Mac’s Quality Foods  a colleague made a number of comments to an employee about how attractive she was. This was meant to be a compliment, but she found the comments offensive and was successful in claiming sexual harassment.
Leading on from this, we can see that the behaviour does not have to be directed at an individual for it to be harassment. The question is whether it is violating the individual’s dignity or causing the unacceptable environment.
This is demonstrated in Moonsar v Fiveways Express Transport Ltd . In this case, a woman worked in an open plan office with a group of men. She was aware that they were looking at pornography on their computer, within the office. They did not talk to her about it, she did not see anything, but she found the environment that was created to be intimidating, hostile, degrading, humiliating and offensive. She was successful in claiming sexual harassment.
We also note that there is no specific definition of what is and is not harassment. In determining whether there has been harassment, the employment tribunal will carry out both a subjective and objective assessment. The objective assessment will look at the facts of what occurred. The subjective assessment will have regard to the distress caused to the individual, but this does not mean that anything which offends an individual will necessarily be harassment. It is important to note that a one-off comment could be sufficient to be harassment.
In Insitu Cleaning Co Ltd and another v Heads  a manager made a lewd comment to a woman about her breasts. This was a one-off incident, but she did successfully claim sexual harassment because the remark was particularly offensive.
It is also important to note that harassment could be a series of behaviour, or it could be one serious event.
In the case of Bracebridge Engineering Ltd v Darby  the employee was forced into a darkened room by two male supervisors and was sexually assaulted. This one incident was sufficiently serious for her to successfully claim sexual harassment.
In the same way, harassment could be the result of a series of actions. In Strathclyde Regional Council v Porcelli  the employee suffered a number of incidents, including suggestive remarks, deliberately brushing against her, hiding her personal belongings and putting things where she could not reach them. None of these incidents were harassment on their own, but added together as a pattern of behaviour this was sufficient for her to be successful in her claim of sexual harassment.
A woman might not complain immediately of sexual harassment, but this does not mean that she is accepting the behaviour that she is experiencing. In Munchkins Restaurant Ltd and another v Karmazyn and others  the employees were waitresses and were experiencing ongoing unacceptable behaviour from their manager. Although they had put up with it for a long time, this does not mean that it was not harassment and they were successful in their claim.
Finally, it is important to note that “banter” can amount to harassment. We do need to have some fun at work, but banter should never be distressing to an individual or cross the line into inappropriate behaviour. Employees should be told that different employees have different levels of sensitivity, and therefore be careful about what they say.
What are the messages that we should take away from all these cases?
Be aware of the definition of harassment. It is quite broad, it does not require the behaviour to be directed specifically at an individual and the focus is on what the individual finds to be unacceptable. Although an individual will not be successful in arguing that any behaviour that they do not like is harassment, their view of what has occurred and the impact that it has had on them is an important consideration.
Also, be aware that harassment can arise from an ongoing pattern of behaviour, as well as from one event. Just because an employee has not complained does not mean that they are accepting the behaviour.
Include training on harassment as part of the induction training for all your line managers and supervisors. Make sure that they know what might be seen as harassment.
Review your harassment policy. Check that it clearly states what penalties might be imposed on someone who harasses another. Also check that it has a clear process for an employee to follow if they want to make an allegation of harassment.
Act promptly if there is an allegation of harassment. Talk to the complainant and listen carefully to what they are alleging. Assure the complainant that you will investigate the issues. Keep the complainant informed as you proceed with the investigations, and report back on the conclusions that you reach. Remember to follow up with the complainant after a few weeks to check that the problems have stopped and they are not suffering any unpleasantness because they made the complaint.
Last reviewed 18 June 2018