Sexual harassment in the workplace

Introduction

The rights set out in this section apply to all categories of staff who work in your business under a personal service contract, such as:

• Employees
• Workers
• Partners or a director
• Staff working under a contract of apprenticeship
• Some self-employed individuals who either can't send someone else to do the work instead or have a limited right to do so.

It won't apply to anyone else, including volunteers.

Staff are protected by anti-discrimination legislation regardless of how many hours they work.

Sexual harassment can be committed by a member of staff, an agent acting on your behalf, or a third party.

A third party includes (but is not limited to):

• Customers or clients
• Other people sharing the building where staff work
• People working for your suppliers
• Friends and family of staff
• Delegates at a conference
• Freelancers and self-employed contractors
• Members of the public.

What is sexual harassment?

Sexual harassment is unwanted conduct of a sexual nature that violates a person's dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment for them. Unwanted conduct of a sexual nature includes (but is not limited to):

• Making sexual comments, including 'banter' or jokes.
• Sending sexually explicit emails, texts (or other forms of instant messages), or posts on social media.
• Displaying or sharing sexually graphic images, posters or photos.
• Suggestive looks, staring, leering or sexual gestures.
• Unwelcome touching, hugging, massaging or kissing.
• Propositions and sexual advances.
• Sexual assault or rape.
• Making promises in return for sexual favours.
• Intrusive questions about a person's private or sex life.
• Someone discussing their own sex life.
• Spreading sexual rumours about a person.

The unwanted conduct:

• Can be unintended but will still be harassment if it has, or the victim believes it has, one of the above effects on them and they're not being unreasonable or 'hypersensitive'.
• Will be harassment if it's intended to have one of the above effects on them (even if it did not have the desired effect).
• Can be done by someone of the same or a different sex.
• Can be verbal, non-verbal or physical.
• Doesn't have to happen more than once or always be the same to be harassment - one event is enough.
• Doesn't have be sexually motivated to be harassment - it can be done just to humiliate, embarrass or belittle them.
• Doesn't have to be specifically directed at the victim to be harassment - it could be directed at others or no-one in particular.
• Can still be unwanted even if the victim put up with it or engaged with it in the past or initiated it as a coping mechanism - future conduct can still become unwanted.

Examples of sexual harassment

• A worker alters a pornographic image by pasting an image of a colleague's face on to it. The worker then sends it to other staff, causing them to ridicule the colleague. There was no sexual motivation behind this act, but the use of the image is sexual in nature.
• A worker has a brief sexual relationship with a supervisor. The worker tells the supervisor that it was a mistake and doesn't want the relationship to continue. The next day, the supervisor grabs the worker's bottom, saying "Come on, stop playing hard to get". Although the original sexual relationship was consensual, the supervisor's conduct after the relationship ended is unwanted conduct of a sexual nature.

Duty to prevent sexual harassment

Employers must take reasonable steps to prevent sexual harassment of their staff while they're working for them.

You're expected to follow the Equality and Human Rights Commission (EHRC) technical guidance on Sexual harassment and harassment at work.

If you lose an Employment Tribunal claim involving sexual harassment, a judge must look at whether you took reasonable steps to prevent it. If you didn't, any compensation awarded can be increased up to 25%.

The EHRC also has the right to take enforcement action in relation to failure to prevent sexual harassment (even if an incident of sexual harassment hasn't happened). This could take the form of investigations, action plans, remedial agreements or court injunctions, and the outcome of enforcement action may be published on the EHRC website.

Third parties

Although it's not specifically mentioned in the legislation, the duty to prevent sexual harassment will also extend to preventing sexual harassment by third parties.

This is because the EHRC guidance says it can still take the above-mentioned enforcement action against you in relation to this.

However, staff cannot make a claim to an Employment Tribunal if they've suffered sexual harassment from a third party.

Less favourable treatment related to harassment

Although your duty to prevent sexual harassment in the workplace doesn't cover this form of harassment, you should be aware of it.

This is when a member of staff is treated less favourably by you or another member of staff because they rejected sexual harassment or submitted to it, including if the sexual harassment was committed by a third party.

It can include (but is not limited to):

• Denying someone an opportunity because it's suspected they intend to make a complaint about sexual harassment.
• Excluding someone from a social event or meeting because they raised a grievance about sexual harassment.
• Failing to promote someone because they rejected sexual advances.
• Dismissing someone because they complained about sexual harassment committed by a third party.