Sexual harassment can create an unpleasant working environment and should be taken seriously by employers and managers. While anyone can experience sexual harassment, statistics show that women are more likely to experience sexual harassment at work and younger people are more likely to report it.

More than 50% of women say they have been harassed in the workplace and 20% of men. It is important that the working culture at any business organisation should encourage gender equality and people should not be afraid to speak out when inappropriate behaviour occurs.

What is sexual harassment in the workplace?

Sexual harassment is unwanted behaviour of a sexual nature that affects an individual’s employment.

The term sexual harassment covers incidents that may be considered minor such as an inappropriate sexual joke, to criminal behaviour such as rape. It can include bullying, unwelcome sexual advances and other physical, verbal or non-verbal conduct of a sexual nature. It can be a one-off incident or a repeated pattern of behaviour. The behaviour does not have to occur on work premises or during working hours. Examples include flirting or making sexual innuendoes at after work drinks in a bar, sending repeated invitations to go on a date to a colleague’s private or work email address, or making comments regarding a colleague’s appearance.

If the behaviour interferes with an individual’s work performance or creates an atmosphere that is intimidating or offensive, it is deemed to be sexual harassment in the workplace.

Protections for employees – relevant legislation

The Equality Act 2010 protects the following people from sexual harassment at work:

• Employees and workers
• Contractors and self-employed people who have been hired to do a particular job or project
• Job applicants and students doing work experience

The law defines harassment 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.”

Employer’s obligations

All employers have a duty of care to protect their employees and will be liable if they have not taken steps to prevent sexual harassment occurring in the workplace. Should an employee leave because of sexual harassment an employer may face a claim for constructive dismissal.

Employers should therefore take steps to ensure that people are aware of what sexual harassment includes and how they should report any behaviour that is unwanted and sexual in nature.

Employees should be encouraged to report sexual harassment without fearing there will be negative repercussions for them. Any complaint of sexual harassment should be taken seriously and investigated. An employer has a duty to support the person who has suffered sexual harassment, assurance should also be offered to anyone accused of this kind of behaviour that they will be treated fairly, and the matter dealt with in confidence.

Every business needs to have a strategy in place to deal with complaints of this nature. Your lawyer will be able to advise and draft a suitable strategy and deal with any specific cases.

Investigations

Investigations need to be impartial and fair. Workplace investigations into sexual harassment are generally managed by HR staff (unless of course the incident being complained about includes those staff). Where the complaint concerns senior staff, the investigation may be outsourced to an independent investigator, such as a law firm or other impartial specialist to ensure the outcome is fair and the employee’s trust is maintained.

The investigation should be confidential and based on evidence, not just what one of the parties is saying. It may include interviews with colleagues, clients and others, and requests for copies of emails. Once the investigation has concluded, the findings should be reported transparently, and any full and appropriate disciplinary action should be taken.

This information is for general purposes only and we recommend you obtain professional advice relevant to your circumstances.

If you or someone you know wants more information or needs help or advice, please contact us on (023) 9225 9822 or email [email protected]