Harvey Weinstein – The Aftermath
Stories are emerging of widespread sexual harassment in British organisations, including Parliament. Recent reports have found that around 50% of British women and 20% of men have experienced sexual harassment at work, but around 60% of women and 79% of men did not report it. Even when reported the outcomes are usually poor; not improving or in some cases worsening the situation.
What constitutes sexual harassment?
Sexual harassment is defined under the Equality Act 2010 as unwanted conduct of a sexual nature that violates an individual’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.
It can include unwelcome sexual advances, touching and other forms of sexual assault, sexual comments and jokes, displaying pornographic photographs or drawings or sending emails with material of a sexual nature.
The fact that an individual may have put up with it for years does not mean that it is not unwanted behaviour, nor does the fact that the victim may have felt the need to initiate “banter” as a coping strategy.
Sometimes the rejection of the perpetrator’s advances results in an act of discrimination, for example being turned down for promotion which the individual believes they would have got if they had accepted their boss’s sexual advances. Sexual harassment is an abuse of power.
What can be done to resolve it?
The question is, what should an employee do if they are being sexually harassed at work?
First of all they must make the perpetrator of the harassment aware that they are not happy with their behaviour.
In order to be successful in a claim for sexual harassment, the victim of the harassment will need to be able to show that they have rejected the perpetrator’s advances.
If the employee has rejected these advances and made it clear that they were not welcome but this has had no effect, they should raise a formal grievance with a more senior manager or HR.
The employer should then investigate the complaint thoroughly and deal with it effectively by taking appropriate disciplinary action if required.
Who is liable?
An employer will be held vicariously liable for any discrimination or harassment committed by an employee in the course of employment. This may cover a colleague’s leaving party or the office Christmas party.
Is there a defence?
There is a defence available for an employer if it can show that it took “all reasonable steps” to prevent the employee from doing the discriminatory act or from doing anything of that description.
An employer will only succeed with this defence if it has taken these steps before the act of discrimination or harassment occurred including;
For further advice on sexual harassment in the workplace or if you would like us to provide you with any of the above policies please contact Audrey Spencer, Associate Solicitor, Head of Employment at Humphries Kirk in Poole on 01202 725 400.