Employees have a right not to be sexually harassed in the workplace, and employers have a duty not to let this happen. It causes stress and humiliation, and benefits no-one.
Ultimately, the employer may face an employment tribunal if they fail to take action to stop the unwanted conduct.
The Sex Discrimination Act 1975 protects employees against unwanted conduct of a verbal, visual or physical nature, which is offensive, humiliating or degrading.
There is no strict definition of what does and does not constitute sexual harassment. However, it can be seen as any unwelcome behaviour of a sexual nature. Employers should be aware that the law tends to side with the victim rather than the perpetrator. They should also bear in mind that people are different, and have different views on what is acceptable. What may seem like a playful action or remark to one person will be seen as offensive by another. The test is how the recipient of the behaviour feels about it.
Sexual harassment can occur in any occupation or environment, and can happen to men as well as women.
It can be verbal—questions or comments about a person’s sex life, comments about a person’s appearance, inappropriate remarks, or requests (or demands) for sexual favours.
It can be non-verbal, for example, displays of sexually explicit material, such as calendars or magazines, or staring at a person’s body. Harassment in this situation occurs if the workplace is an “intimidating, hostile, degrading, humiliating or offensive environment”.
It can be physical, for example, inappropriate touching, standing too close, or sexual assault or rape.
If the person rejects or submits to unwanted conduct of a sexual nature, and is treated less favourably than if they had not rejected or submitted to it, then sexual harassment has occurred.
There is no need for a woman to prove that a man would have been treated differently, or vice versa. Regulations introduced in 2005 removed the employer’s defence that men in the workplace were subjected to the same behaviour.
If an employee makes a complaint about sexual harassment, you should investigate and deal with it. If the harassment continues, your employee could take you to an employment tribunal. The employee must do this within three months of the incident taking place.
According to Acas, it is good practice for employers to frame a formal policy on harassment, and to give examples of what is unacceptable behaviour in the workplace. This could include a statement of commitment from senior management, and a statement that bullying and harassment is unlawful, will not be tolerated, and may be treated as a disciplinary offence. It could also state that complaints will treated as confidential, that there will be protection from victimisation, and that investigations will be carried out to a specified timescale.
Where an employee makes a complaint, they may wish to be accompanied at any grievance hearing by a fellow employee or other representative, such as a trade union representative.
Employers have a duty to protect employees from sexual harassment from visitors to the premises or clients, as well as from other employees or managers.
The Acas ‘Code of Practice on disciplinary and grievance procedures’ sets out principles for handling complaints and grievances in the workplace. Employers who do not follow the Code may have an extra 25 per cent added to any subsequent employment tribunal award.
The employer should take reasonable action following a thorough investigation. They may want to take the employee’s record into account. Written warnings, suspension or a transfer are examples of penalties that they can impose.
Where the complaint is serious, the employer may suspend the alleged perpetrator. He or she should be suspended on full pay, unless their contract of employment provides otherwise.
If the sexual harassment amounts to gross misconduct, the perpetrator can be dismissed without notice.
The employer may want to provide training for employees and managers, or counselling for the perpetrator to change behaviour.
Mediation using a trained and objective mediator may be an option to resolve a sexual harassment issue.
The employer should also examine their procedures, policies and working methods to ensure the situation does not arise again.
More information on what to do is available from Acas, at www.acas.org.uk.
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