With sexual harassment very much in the news and at the forefront of everyone’s minds, British employers have been scrambling to cope with complaints. It seems, despite shifts in workplace harassment legislation in recent years, it has unfortunately very much remained a constant feature.
First broached in the EU in 1991 by Mrs. Vasso Papandreou, EC Commissioner for Social Affairs, produced a Recommendation and Code of Practice on the protection of the dignity of women and men at work.
The definition of sexual harassment by the EU was subsequently updated in the 2006 Equal Treatment Directive, which states:
“any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment”.
Lus Laboris, a leading HR and employment law firm based in Belgium, have explained the legal position on sexual harassment at work in the UK, outlining what will be seen as harassment and how it will affect not only the employees in question, but the employers themselves.
Workplace Harassment in the United Kingdom
In the UK, sexual harassment law is outlined in the Equality Act 2010, under which all employees are protected from harassment at work, which has either, “the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.”
This broad definition covers all aspects of harassment, from singular sexist comments to serious sexual assaults.
Additionally, in line with the EU definition, harassment is defined as specifically encompassing, ‘unwanted conduct of a sexual nature’. Harassment also extends to the treatment of the victim after the action, where the harasser is guilty of treating the victim less favourably.
For instance, this would cover when a person’s career is affected by either giving into, or rejecting sexual advances from a colleague.
Reporting Sexual Harassment
Importantly, it is not necessary for a victim of sexual harassment to have made it clear whether the ‘harassment’ was wanted or unwanted in advance.
Harassers may still be liable for harassment if they were not aware of how their behaviour was affecting the other person.
Reactions
Here is where the legislation becomes a little trickier. The victim’s reaction to harassing behaviour must be ‘reasonable’.
As such, cases where the ‘victim’ perceives harassment from objectively innocent behaviour will often not be classified as harassment. However, if the behaviour continues after the ‘harasser’ was asked to stop, this will likely be seen as harassment.
Employer’s Responsibilities
In the UK employers are liable for acts of sexual harassment perpetrated by their employees, even if they were not aware of said actions. However, as an employer you can defend yourself if you can demonstrate that you have gone to reasonable lengths to prevent harassment occurring in your workplace.
In part this will be dealing with issues of harassment appropriately when they arise, but it does not stop there. Employers need to show that they have implemented clear policies regarding sexual harassment, and also have provided adequate training to their staff – especially at a managerial level.
It is therefore extremely important that as an employer you are providing policy which will outline what is and isn’t defined as sexual harassment, how it must be broached and how it will be dealt with.
Richard Lister, head of Lewis Silkin LLP’s employment law group, specified that a sexual harassment policy must contain:
- a clear definition of sexual harassment and illustrative examples of impermissible behaviour;
- confirmation that employees are encouraged to report harassment by their colleagues, with straightforward channels for doing so;
- clear procedures for investigating complaints and formal/informal resolution processes;
- specification of the disciplinary sanctions that will apply when harassment has occurred (including dismissal where appropriate).
Of course, we highly recommend that you take professional legal advice when drafting this policy.
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