The Equality Act 2010 prohibits discrimination, whether direct or indirect, victimisation or harassment. The Equality Act sets out a non-exhaustive list of ‘characteristics’ which are protected by law. These are narrated as follows: age, race, sex, religion, sexual orientation, gender reassignment, pregnancy or maternity, civil partnership or disability.
A recent study has revealed that almost two- thirds of individuals have suffered sexual harassment at their place of work. But what constitutes harassment?
Harassment involves unwanted conduct in relation to a protected characteristic which creates an intimidating, humiliating, offensive, hostile or degrading environment towards another. Sexual harassment occurs where an individual engages in unwanted conduct of a sexual nature.
Sexual Harassment can be physical, verbal or non- verbal and can happen to both women and men. Physical sexual harassment includes unwanted acts such as touching and kissing, whereas verbal harassment includes comments, words and jokes. Non verbal actions such as gestures, drawing or photographs can also amount to sexual harassment. Therefore, employers have to be aware of how their employees conduct themselves on social media networks.
Any Sexual Harassment incidents should be reported immediately to the Employer so they can take the appropriate action. If the employer is unaware of sexual harassment issues within the work place, then it is unlikely that they could be held liable. In situations where the employer has been made aware, but has failed to take reasonable steps to prevent or minimise the harassment, the employer can indeed be held liable or responsible for their employee’s actions.
On the face of it, employers owe their employees a “duty of care” to take all reasonable steps to ensure their health, safety and wellbeing. In the case of Burton v De Vere Hotels 1996 the employers were held responsible for the sexual and racial harassment of their female employees by a third party. The employers were aware that guests at the hotel were racially and sexually harassing their employees. In their judgement, the Employment Appeals Tribunal held that the employers failed to control or minimise the situation. Furthermore, in the case of Waters v Commissioner of Police of the Metropolis 2000 it was held that employers could be held liable where it could be foreseen that harassment is likely yet nothing was done to prevent or stop it.
Many cases of sexual harassment go unreported for various reasons. It should be borne in mind that if sexual harassment is not reported to an employer, that does not mean that such conduct is acceptable. In the case of Munchkins Restaurant Ltd v Karmazyn 2010 conduct is still regarded as unwanted even where it had been ongoing and unreported for several years.
Many victims of sexual harassment fail to report the matter out of fear for their job, embarrassment, possible repercussions or a worry that they may not be taken seriously. Claimants of sexual harassment in the workplace however are protected under the Equality Act 2010.
Employees who believe they have been a victim of sexual harassment can receive advice on the matter by talking to a senior member of staff or ACAS.
Munro & Noble provides legal advice and assistance on matters relating to employment law, for both employees and employers. If you feel you have been a victim of harassment in the work place, or indeed if you are an employer looking for more information or assistance, please do not hesitate to contact our Dispute Resolution Department on 01463 221727