The #MeToo movement has increased public awareness of sexual harassment in society and led to greater scrutiny of behaviour in the workplace, where power imbalances exist and perceived norms, lack of awareness and organisational culture can be a breeding ground for harassment claims.
At Thomas Mansfield Solicitors we have seen an increase in disputes centred on this issue and have found that a limited understanding of what constitutes sexual harassment in law is often a contributing factor.
Section 26 of the Equality Act 2010 contains the core legal definition. Sexual harassment is defined as occurring when someone engages in “unwanted conduct” of a “sexual nature”, which has the “purpose or effect” of “violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment”. Importantly, when deciding if the conduct had the “effect”, Employment Tribunals must also account for the “effect factors”:
- Unwanted conduct – Means “unwelcome” or “uninvited”. If it can be evidenced that the complainant welcomed or actively invited the conduct, then it will not constitute sexual harassment (in practice – a challenging and rarely used defence).
- Sexual nature – Common examples would be sexualised comments or jokes, sexual advances, unwelcome touching, sexual gestures. What constitutes “sexual” can be obvious, but not always. A recent example concerned the unwanted massaging of a colleague’s shoulders. In that case the massaging was found to have been “misguided encouragement” rather than “sexual”.
- Purpose or effect – It can be challenging to show purposeful intent. Often cases of sexual harassment focus on the “effect” on the complainant – whether they subjectively feel their dignity was violated or that an offensive environment was created.
- The “effect factors” – Usually a negative effect is the focus of the complaint itself. While this will tick the first of the “effect factors” (the subjective factor), the second two elements are just as important. The consideration of any “other circumstances” and “whether it was reasonable for the conduct to have had that effect” (the objective test), are frequently legal battlegrounds. The objective element is important, especially given the current political climate. I have witnessed major organisations panic when allegations occur and overlook or misunderstand this fundamental third element. A hypersensitive individual may feel the effect, but the question as to whether it was reasonable for them to do so must also be applied.
For employers facing sexual harassment claims there can be serious consequences, including legal liability for their employees’ actions, damage to reputation, loss of employees and customers and unlimited compensatory awards.
Taking preventative steps by providing training, developing clear policies, creating a culture of respect and accountability, and providing multiple channels for reporting incidents is vital.