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Sexual harassment
[ch 7: pages 234-235]Sexual harassment is specifically outlawed by section 26(2), EA 10. This says that a person carries out harassment if he or she engages in unwanted conduct of a sexual nature with the purpose or effect of:
• violating the dignity of the other person; or
• creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
“Conduct of a sexual nature” can take many forms, including lewd or suggestive remarks, jokes about a colleague’s sex life, displaying or circulating sexualised or pornographic images such as inappropriate calendars or screen savers, inappropriate touching, hugging or kissing, or demands for sexual favours.
Sexual harassment also occurs where someone engages in harassment (for example, unwanted sexual advances) and then, because of the response to that conduct (whether rejection or submission), their target is treated less favourably than they would have been treated had they not rejected or submitted to the conduct (section 26(3)(c), EA 10). For example:
A female worker is asked out by her team leader and she refuses. The team leader feels resentful and informs the Head of Division about the rejection. The Head of Division subsequently fails to give the female worker the promotion she applies for, even though she is the best candidate. She knows that the team leader and the Head of Division are good friends and believes that her refusal to go out with the team leader influenced the Head of Division’s decision. She could have a claim of harassment over the Head of Division’s actions.
EHRC Code of Practice on Employment
EHRC Code of Practice on Employment (https://www.equalityhumanrights.com/sites/default/files/employercode.pdf)
LRD Booklets, Tackling sexual harassment at work (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1911)
Campaigns to end sexual harassment
Sexual harassment dominated the headlines in 2018, largely thanks to the momentum built by the Me Too! Movement following the allegations against disgraced film producer Harvey Weinstein. In the UK, the Women and Equalities Committee of the House of Commons built on that momentum with an investigation into workplace sexual harassment to which trade unions made an important contribution, resulting in a series of recommendations. The government responded in December 2018 in the following terms:
• there will be a new statutory Code of Practice explaining what amounts to sexual harassment and what steps the employer must take to prevent it;
• the government is unlikely to take forward a key recommendation supported by the Equality and Human Rights Commission (EHRC) to create a statutory duty on employers to protect staff from harassment. This suggestion reflected the widely-held view of campaigners that the burden of eliminating workplace harassment should not fall on a few individuals who are willing to bring a tribunal claim and that instead the state should take some responsibility, through a formal statutory duty enforced by the EHRC, with substantial financial penalties;
• the government also rejected a proposal to add a specific duty to the Public Sector Equality Duty requiring public service employers to carry out risk assessments focusing on sexual harassment in their workplace and to take steps to prevent it;
• the government will consult on strengthening the law on third party harassment (see below);
• the government will consult on extending protection from harassment at work under the EA 10 to interns and volunteers;
• there is to be greater “awareness raising” about sexual harassment at work, working with Acas and the EHRC;
• the government rejected a proposal for punitive damages and costs awards in cases of sexual harassment;
• the government rejected the proposed reintroduction of the statutory questionnaire, which it describes as not “appropriate to present day conditions”;
• the EHRC is to be added to the list of “prescribed persons” to whom a whistleblowing claim can be made (see Chapter 13);
• the government has agreed to gather better data on the scale and nature of sexual harassment at work; and
• the Law Commission is consulting separately on whether to extend tribunal time limits in all employment tribunal cases, not just sexual harassment.