Harassment - in the news and in the workplace
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Recently, barely a day goes past without a new allegation of sexual harassment being reported. From Hollywood to Westminster, women and men are coming forward in huge numbers to report a range of sexual behaviour ranging from the inappropriate to the illegal. Women in particular have been sharing their experiences of harassment using the hashtag #metoo to illustrate the scale of the problem. Many of these stories have taken place at work or involve colleagues, so, having just started my employment seat, I have been paying particular attention to the legal angle.
What is the law behind workplace harassment?
Sexual harassment occurs where a person engages in unwanted conduct of a sexual nature that has the purpose or effect of violating another person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. This is defined in the Equality Act 2010. I should make clear that in some of the cases reported recently, the alleged conduct has gone beyond harassment and has instead constituted assault – a serious criminal matter that is beyond the scope of this blog post.
Harassment by an employer or prospective employer is prohibited by the Equality Act, and your employer will also be liable if a fellow employee harasses you, unless the employer has taken all reasonable steps to prevent it. But what behaviour counts as harassment and what does not?
It is not too difficult in most cases to determine whether ‘unwanted conduct of a sexual nature’ has taken place. For example, a great deal of flirting might take place in the workplace, but if both parties are enthusiastically enjoying it then it is very unlikely that either will consider it harassment – it is not unwanted. Equally, my boss giving me a boring task to do may be unwanted conduct, but I would have difficulty proving that it has a sexual nature.
The next part of the definition - regarding the purpose or effect of the conduct - may be trickier. The conduct in question may take a number of different forms and whether or not it is harassment depends on how the person on the receiving end interprets what has been said or done. It might be difficult to determine whether conduct has the ‘purpose or effect’ of violating your dignity or creating a hostile environment, or whether it is innocent. A harasser is always likely to argue that this was not the purpose of their behaviour (mostly commonly they will call it 'banter'), but you can still show that you have been harassed if this was the effect of the conduct in question,
At the employment tribunal a judge will consider, when determining the effect of the conduct, how the recipient of the behaviour felt about it and whether it was reasonable for them to feel that way in the circumstances. The same comment might have a completely different effect in different contexts. For example, imagine that two female trainee solicitors are chatting and one complains about putting on weight. The other reassures her and says "you’re stunning – you should be a model". Now imagine that the exact same comment is made unprompted by a male partner in the firm, when the trainee is in a meeting room alone with him. While the behaviour is the same, the effect (and probably the purpose, unless the male partner is very naïve) will be extremely different. In the first set of circumstances a judge would be unlikely to think it reasonable for the trainee’s dignity to have been violated, but in the second it would be far more likely.
Sometimes harassment is obvious and there is no doubt at all that it has taken place; at other times you might be surprised by the effect that a comment or action could have on someone.