Sexual harassment occurs when someone receives unwanted behaviour of a sexual nature from another person. Sexual harassment at work covers a range of different categories of people including:
Self-employed people hired to perform some work
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In order for sexual harassment to have occurred, the unwanted behaviour must have either:
Violated the person’s dignity, regardless of whether this was intentional
Created a hostile environment for the person, again regardless of whether it was intentional
Unwanted means unwelcome or uninvited, although the person who feels harassed does not need to expressly object to the conduct for it to be unwanted.
Anybody that sexually harasses another person at work is responsible for their own actions. However, the employers must also make sure they prevent this from happenings and can be held vicariously liable if they do not do everything possible to protect their staff from sexual harassment.
Sexual harassment can be a one-off event or a pattern of behaviour. It does not need to be in person and can occur over email or social media. It also does not need to be a physical act to be regarded as sexual harassment. The main issue is the effect on the person that is receiving the behaviour, regardless of what the intention of the person that is doing the action.
Sexual harassment can be by someone of the same sex or someone of the opposite sex. It covers anyone that an employee comes into contact with during their work, for example:
Someone in the same team
A manager or supervisor
A person that is part of the workplace environment, such as a contractor, supplier or even a customer
What qualifies as sexual harassment can be quite broad and includes a range of incidents such as:
Written or verbal sexual comments about a person or their clothing or appearance
Unwanted touching or kissing
Questioning a person about their sex life
Making sexual references to a person’s gender reassignment or sexual orientation
Any form of sexual assault
Telling sexual jokes
Displaying or sharing sexual images
The sexual harassment needs to have occurred during the course of employment but it can extend outside of the workplace. For example, an incident that occurs at a work social at an outside venue can still qualify as sexual harassment at work.
Where a person is being sexually harassed, the first thing to do is ask the person to stop, if it is safe to do so. The next step is for the employee to inform their line manager. It is recommended to keep a written record of what has happened.
Somebody that has been sexually harassed at work, or has witnessed this happen to someone else, can raise a complaint either through their employer’s harassment policy or via a grievance. The employer needs to take these complaints very seriously and ensure that they handle them in a sensitive manner.
The employer has various options to deal with such a complaint, including:
An internal investigation
A grievance process
A disciplinary process
Hopefully, the employer will be able to resolve the matter directly with the employee. However, where this is not the case, the employee has three months from the date of the sexual harassment (or last incident) to making a claim for sexual harassment to an employment tribunal. It is necessary for the employee to notify Acas of their intention to make a claim. Acas will offer the opportunity of trying to resolve the situation via themselves before a claim is submitted.
It may be that the sexual harassment is also a criminal offence. In this case the offence should be reported to the police who will deal with it as a criminal matter. Where the case is being investigated by the police, it is still possible for the employer to deal with any workplace complaint about the sexual harassment but they should confirm with the police that this will not prejudice the criminal matter.
Recent high-profile cases involving individuals using non-disclosure agreements to prevent victims of sexual harassment at work from disclosing what has happened to the authorities has led to a warning being issued by the Solicitors Regulation Authority in relation to non-disclosure agreements.
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