AVOIDING SEXUAL HARASSMENT – WHY THIS SHOULD BE TOP OF YOUR AGENDA


The direction of travel is clear: society will no longer turn a blind eye to harassment and behaviours need to change - the approach in the workplace has to reflect this trend. The government has agreed that a statutory Code of Practice on sexual harassment in the workplace should be introduced and is consulting on introducing a mandatory duty on employers to protect employees from harassment, underpinned by enforcement action. So enlightened self-interest may encourage businesses to be a driver not a passenger.


Most employers state that they take a zero tolerance stance to harassment and will treat a formal complaint seriously. We consider why this may not be enough and why, legally, employers need to take a closer look at their workplace culture and how they can avoid issues before they arise.


WHAT CAN CONSTITUTE HARASSMENT? The legal definition of sexual harassment is “unwanted conduct of a sexual nature, that has either the purpose or effect of violating that person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.” Harassment may therefore take place even if the harasser has no negative intention. In some circumstances harassment can be a one off incident. Behaviour relating to another protected characteristic, such as someone’s race or disability can also constitute harassment.


Sexual harassment can include physical conduct or making sexual advances, but can also extend to other behaviours including sexual comments, banter, innuendo or sharing pornographic images. A serious continued course of harassment can also give rise to a criminal offence.


WHAT ARE THE LEGAL OBLIGATIONS ON EMPLOYERS? All employers have a duty to protect the health and safety of their staff, including protecting them from sexual harassment. Employers can also be legally liable for the harassment of their staff in the course of employment (even if it occurs outside of the office), constructive dismissal claims where the employee has resigned, and potentially personal injury claims. Like all discrimination claims, damages for sexual harassment claims are uncapped.


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Diversity, Inclusion and Workplace Behaviours – The Business Agenda


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