Sexual harassment in the workplace is a highly unpleasant scenario for anyone to go through. It can have hugely damaging effects on the victim, affecting their performance at work, mental health, and even their life outside of work.
Unfortunately, sexual harassment at work is all too common. A 2020 survey by the UK Government found that 29% of those in employment who responded had experienced some form of sexual harassment in their workplace or work-related environment in the previous twelve months.
But what constitutes sexual harassment in the workplace, and what can be done about it? This article aims to answer some of the most common questions our sexual harassment specialist solicitor David Miers gets asked here at Setfords.
- What is sexual harassment at work?
- Who can sexual harassment happen to?
- Is sexual harassment at work a crime in the UK?
- What does my employer need to do to stop sexual harassment?
- What to do if you have been sexually harassed at work
- How to make a sexual harassment claim against your employer
- What if I don’t want to go to a tribunal?
What is sexual harassment at work?
A simple definition of sexual harassment is any unwanted sexual behaviour from somebody in your working environment that makes you feel humiliated, uncomfortable, intimidated, or violates your dignity. This could be at work itself or in any work-related environment, such as when visiting a client, at the Christmas party, and so on.
Sexual harassment can be both verbal and physical. Some examples of what sexual harassment includes are:
- Jokes of a sexual nature
- Unwanted touching (this can be anywhere on your body), including hugging
- Sharing explicit images or videos
- Making sexual comments, flirting, or gesturing
- Sexual assault and rape
Many people who have been victims of sexual harassment at work may be afraid to come forward, as they worry the behaviour was ‘banter’ and not intended as harassment. However, any behaviour can be sexual harassment, even if it was intended as a joke if it:
- Is unwanted
- Is of a sexual nature
- Makes you feel humiliated, offended, degraded, or violates your dignity
- It creates a hostile environment for you or others
Furthermore, sexual harassment can be a one-off incident or a pattern of behaviour that continues even after the victim has asked it to stop.
Who can sexual harassment happen to?
Sexual harassment can happen to anyone of any gender or sexual orientation. And, you can be sexually harassed by somebody of the same or different gender identity or sexual orientation.
Furthermore, sexual harassment can be against an individual or a group. Some organisations, unfortunately, have a culture of sexual harassment that may not even be directed at anybody. An example of this is sharing explicit images or videos. Even though these images or videos may not be of somebody in the workplace, sharing them still creates a hostile environment and so can be reported as sexual harassment.
Is sexual harassment at work a crime in the UK?
Sexual harassment in the workplace is a form of unwanted discrimination under the 2010 Equality Act. It is unlawful, and an employee can bring an employment tribunal case against their employer to gain compensation.
Despite this, it is not a crime in itself. However, the most severe forms of sexual harassment, sexual assault and rape, are serious crimes and should be reported to the police as soon as possible to bring about a criminal case on the perpetrator.
Employees also have rights under the Protection from Harassment Act 1997. An offence of Harassment under the Act does not need to be sexual in nature but it does afford employees who have suffered sexual harassment at work another avenue to redress if a claim under the Equality Act is not possible. Such claims are typically brought in the County and High Courts rather than the employment tribunal.
What does my employer need to do to stop sexual harassment?
Your employer has a responsibility to do everything they can to stop sexual harassment from happening at work in the first place. For example, they should:
- Make it clear to everyone, both employees and those who may use the company’s services, that sexual harassment of any kind will not be tolerated
- Train everyone in the company about sexual harassment, how to recognise it, and how to report it
- Appropriately supporting any victims of sexual harassment in the workplace
- Ensure that all company policies are in line with a zero-tolerance approach to sexual harassment
If you are sexually harassed at work, the individual perpetrator is responsible for their actions. However, your employer may also be accountable through vicarious liability. This may be the case if it is found that the employer did not do everything they could to prevent sexual harassment from happening.
An employer has a duty of care towards their employees. If they do not uphold this responsibility and an incident of sexual harassment occurs, the employer may be in a severe breach of employment contract with the victim. And, if the victim feels that they have no choice but to resign over the incident, the employer may face a case of constructive dismissal, which could result in paying a settlement to the ex-employee.
If an incident of sexual harassment does happen in the workplace (including at work events such as the Christmas party), the employer should review their current practices and policies. This is to assess what has not worked correctly and what can be done to prevent it from happening again in the future.
What to do if you have been sexually harassed at work
If you have been the victim of sexual harassment at work, the usual first step is to tell the perpetrator to stop if you have not already done so. If they do not, keep a written note of dates, times, and interactions you have with them for future reference.
From there, you can make a complaint to your employer. They should have policies in place to outline how to do this. However, if they do not clarify how you can raise a complaint, you can raise a grievance. The process for this is normally as follows:
- Put your grievance in writing and address it to your immediate manager, as long as they are not the one who has harassed you. If they are, you can raise your grievance with their manager, the HR department, or your union representative if you have one.
- From here, your employer should deal with the matter seriously and sensitively. This includes ensuring that you can discuss the matter privately and confidentially and that anyone who witnesses the incident can also discuss it in private.
- If, after your employer has investigated the incident, you do not feel it has been resolved appropriately, you may be able to make a claim against your employer.
How to make a sexual harassment claim against your employer
Generally speaking, employees have 2 options:
1. Sexual Harassment under the Equality Act 2010
- Claims must be made within three months of the incident taking place.
- You can make a claim whilst you are still employed by the company,
- You do not need to have worked there for a certain amount of time to do so.
- If the harassment is ongoing, the three months you have to make a claim resets at every incidence.
- The funding of such claims are often covered by Legal Expenses Insurance
2. Claim under the Protection from Harassment Act 1997
- There needs to have been 2 qualifying events (a course of conduct)
- The harassment does not need to be sexual or as a result of a protected characteristic
- You get 6 years to make a claim
- Such claims are normally dealt with by solicitors on ‘no win no fee’ terms.
It is a good idea to seek the advice of a specialist solicitor before making a claim as they will be able to advise you on your available options and the next steps for going forwards.
When making an employment claim against your employer, you must first tell Acas that you are making a claim to an employment tribunal. You will then have the chance to try and resolve the dispute through Acas before making a formal request for a tribunal if necessary.
A claim from harassment under the Protection from Harassment Act is commenced by sending a Letter Before Action to your employer, much like a personal injury claim.
What if I don’t want to go to a Court or tribunal?
Understandably, you may not want to take your employer to an employment tribunal or a county court trial. There are several reasons for this, such as not wanting the expense or stress that it can bring, or being reluctant to burn any bridges in terms of your career. However, you do still have options.
If you feel as though you have no choice but to resign from your position as a result of the sexual harassment, then you may be able to negotiate a settlement with your employer instead of a tribunal. This usually entails a monetary settlement package for you.
For advice on negotiating a settlement agreement, you should first seek the advice of a qualified employment law solicitor. They will help you at every step of the way and ensure that you get a fair settlement package for the distress you have been through.