What is classed as sexual harassment and how to deal with it in the workplace

For most, the notion of sexual harassment is one which, in modern society, should have absolutely no place whatsoever.

That said, sexual harassment in the workplace continues to make national and often international headlines. What is particularly concerning is that such conduct continues and is often seen as normal in the workplace.

Following the media attention surrounding Harvey Weinstein, the accusations made by the Financial Times with regard to a President’s Club dinner, and the rise of the #MeToo campaign serves to demonstrate that not only is sexual harassment something which still occurs on a regular basis, but in fact has potentially become “normalised”.

What is sexual harassment?

In employment legislation, sexual harassment is defined as unwanted behaviour of a sexual nature which:

• violates a person’s dignity;
• makes an individual feel intimidated, degraded or humiliated; or
• creates a hostile or offensive environment.

Such a wide definition catches a multitude of behaviours and activities; the telling of sexual jokes, the displaying of pictures of a sexual nature and the obvious physical behaviour such as unwelcome sexual advances, touching and other forms of sexual assault.

What is striking is that with such a wide definition many people may be unaware of the potential for the things that they say and do in the workplace to amount to potential sexual harassment.

Furthermore, there is often a blurring of lines as to what may be acceptable to one person, may be entirely unacceptable and unwanted by another. It should be pointed out that for something to constitute sexual harassment the individual who raises the complaint need not previously have objected to another’s behaviour for the behaviour to amount to sexual harassment.

Further reforms on sexual harassment

In its paper ‘Turning Tables: ending sexual harassment at work’,  the Equality and Human Rights Commission calls for further reforms to working practices in order to encourage individuals who have been subject to sexual harassment in the workplace to come forward.

The Equality and Human Rights Commission focused its sights on the use of non-disclosure agreements (as evidence of “normalisation”) in the workplace and has urged the government to scrap their use as they perpetuate a tendency to “sweep sexual harassment under the carpet”.

The measures recommended by the Equality and Human Rights Commission include extending the employment tribunal deadline for such cases to six months, instead of the usual three, in an attempt to encourage those within the workplace not to stay quiet but to come forward and present complaints in relation to any sexual harassment a have suffered whilst at work.

The Equality and Human Rights Commission also recommended that employers take positive action to prevent harassment in the workplace with the production a statutory code of practice, much like that which exists in relation to grievances, where an employer could potentially face an uplift of 25% in any compensation awarded to one of its employees were it to be found to have breached the code.

What should employers be doing about sexual harassment?

Naturally, an employer should take any allegation or complaint of sexual harassment in the workplace extremely seriously. Moreover, given the nature of such complaints, the employer should at all times ensure that these matters are handled both fairly and in a sensitive way.

For the individual who is alleging they are the subject of this type of treatment, it can be an extremely distressing time and in order to encourage those who have been subjected to, or perceive that they have been subjected to, this form of treatment in the workplace, employers should at all times attempt to make reporting such incidents as stress-free as possible.

The utmost caution and confidentiality should be exercised by the employer at all times, as the incident can be often stressful for the individual who is the alleged perpetrator as well as the alleged victim and the investigation surrounding the allegation should be both even-handed and fair to all involved.

It is recommended that in such circumstances a member of human resources personnel, with specialist training, be on hand to assist with the investigation process and that the needs of both the victim and the alleged perpetrator (such as being allowed to have a companion attend meetings with them for support) should, wherever possible, be accommodated.

If you are concerned about a pattern of behaviour, or the behaviour of any individual in particular in the workplace, we advise a full review of your policies and procedures in relation to the reporting of not only sexual harassment but any form of unlawful discrimination in the workplace.

Given the confusion on the part of some individuals as to what can and cannot constitute sexual harassment, we advise that training is provided to senior employees and line managers both in relation to spotting potential harassment in the workplace and the handling of any complaints brought to their attention.

Why should sexual harassment in the workplace be addressed?

Not only is the potential financial liability to an employer significant in such instances, often the media attention that can accompany such high-profile sexual harassment cases as previously mentioned can cause irreversible damage to an organisations’ reputation.

Above all, it is every individual’s right to report to their place of work and carry out their employment without being subject to or be under the threat of, being sexually harassed in the workplace.