Sexual Harassment: A Workplace Issue?

1. Sexual Harassment: a workplace issue? Jillian Merchant Thompsons Solicitors

2. Sexual harassment as a trade union issue • Long been an issue for the Trade Unions representing members in the workplace. • Sexual harassment is about an abuse of power • Campaigning and lobbying Government for over a decade as part of its anti-bullying and harassment work to tackle sexual harassment and sexual violence in schools.

3. Harassment under the Equality Act • Harassment related to sex (or any other protected characteristic) • Sexual harassment • Less favourable treatment of a worker because they submit to, or reject, sexual harassment or harassment related to sex

4. Who is protected? • Protection from harassment applies to employees and workers.  It also covers contract workers including those on zero hours and agency workers. Only those who are genuinely self employed i.e. are in business on their own account, are not protected under the EqA 2010 • Protection from harassment also applies to job applicants (s. 40 EqA 2010).  So, for example, if during an interview for a post a woman is subject to harassment as defined she can bring a claim against the employer.

5. Harassment related to sex • A engages in unwanted conduct related to a sex • which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, and humiliating or offensive environment for that person

6. Harassment related to sex • Unwanted conduct • Written words of abuse, imagery, graffiti, physical gestures, facial expressions, mimicry, jokes, pranks and other physical behaviour • No requirement to make a complaint • Must be related to sex

7. Harassment related to sex Must have: • it must have the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. • Purpose – does not need to consider whether the conduct actually had the prescribed effect • Focus on effect • What does violating a person’s dignity mean? • What amounts to an offensive environment?

8. Proving Harassment When determining whether or not harassment has the prescribed effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment the tribunal will take into account:- • The perception of the person complaining of harassment; and • The circumstances surrounding the case; and • Whether it is reasonable for the conduct to have that effect.

9. Sexual harassment • A person engages in unwanted conduct of a sexual nature • The conduct has the purpose or effect of violating another person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them

10. Conduct of a sexual nature Examples • Unwelcome sexual advances, touching, sexual assault, sexual jokes, displaying pornographic photographs, sending emails of a sexual nature, sexualised comments about dress or appearance, deliberately brushing up against someone, non consensual sharing of sexual images and comments on social media • Cumulative effect

11. Proving sexual harassment • Same test as for harassment related to sex • The perception of the individual; • The other circumstances of the case; • Whether it is reasonable for the person subjected to the conduct to treat it as harassment.

12. How relevant is the woman’s behaviour? • Case law has held that a tribunal can take into account the complainants own sexual behaviour when assessing the extent of injury to her feelings.   However, the tribunal will also disregard evidence which would create an atmosphere of prejudice. • The courts have made it clear that a woman has a right to express her sexuality without prejudice to her right to decide what she finds offensive.  • In Wileman  v Minilec Engineering Limited [1988] ICR 318, the EAT held that the fact a woman wears allegedly provocative clothing does not mean that she cannot legitimately be offended by unwanted advances.  • Similarly pictures of the alleged victim will not usually carry any weight in a claim where the individual is subject to harassment.  In Wileman an employment tribunal held that the fact the claimant was upset by the harassment was not in any way vitiated by the fact that she was perfectly willing to pose for a newspaper

13. Consequences of Rejection or submission to Harassment This occurs where a person: • Engages in sexual harassment or harassment related to sex or gender reassignment; and • Because of a person’s rejection or submission to the harassment the perpetrator treats them less favourably than the perpetrator would treat them if she had not rejected or submitted to the harassment. • This type of claim is intended to protect those who have rejected advances and then subsequently been penalised for it.

14. Proving less favourable treatment as a consequence of rejection or submission In this case, the complainant would have to prove: • That she had been subject to sexual harassment or harassment related to sex; • That she had been subject to less favourable treatment; and • That the less favourable treatment was because she had rejected or submitted to the sexual harassment.

15. Third party harassment Third party provisions repealed. What does the case law say? • Gravell v London Borough of Bexley, UK EAT/0587/06, the tribunal considered the employer’s failure to challenge harassment by clients, • Sheffield City Council v Norouzi [2011] IRLR 897, • Contehv Parking Partners limited [2011] ICR 341 • Unite the Union v Nailard [2017] ICR 2017

16. Vicarious liability • An employer is liable for the acts of employees and workers done in the course of employment • Course of employment has been given a wide interpretation

17. Reasonable steps defence An employer can also defend a claim of harassment if he can show that he took all reasonable steps to prevent the employee from carrying out the act of harassment. The EHRC’s Employment Code provides that reasonable steps might include:- • Providing equal opportunities training; • Having a policy in place; • Ensuring all employees are aware of the policy; and • Dealing effectively with complaints

18. Victimisation It is unlawful for an employer to subject a worker to a detriment because he or she:- • Has done a protected act • The employer believes that he or she may do a protected act

19. Protected Acts • Bringing an Employment Tribunal claim under the Equality Act • Giving evidence or information in connection with a claim under the Equality Act • Doing any other thing for the purposes of or in connection with the Equality Act • Making an allegation that another person has contravened the Equality Act • Not protected if gave false information in bad faith

20. Protection from Harassment Act 1997 • Harassment is unlawful if a person subjects another to a course of conduct which amounts to harassment which they know or ought to know amounts to harassment of the other. • A course of conduct means that it must have occurred on more than on occasion. • Doesn’t have to be related to a protected characteristic • Civil remedy in the Sheriff Court

21. Action you can take • Ensure the employer consults and negotiates with the union • on policies and procedures • to monitor the effectiveness of policies and procedures • Represent and support members • At the informal or formal stages • Refer for further advice • Advise members to: • Keep a record of what happened, when, how and by whom • Keep a copy of a written complaint • Identify witnesses • Keep copies of relevant evidence emails, texts etc. • Keep a record of medical evidence

22. Employment Tribunal claims • 3 month limitation period from the date of the incident • Claim can be brought against both the employer and the individual responsible for the harassment • Remedies: declaration, compensation for injury to feelings, recommendation

23. Questions? Jillian Merchant Associate E: jillian.merchant@thompsons-scotland.co.uk T: @jillianmerchant