Inappropriate jokes or sexual advances in the workplace – banter or harassment?

sexual harassment

The incidents described range from physical to verbal abuse, with nearly a quarter of the women stating they had suffered unwanted touching and a third subject to sexual jokes and unwelcome comments whilst at work. Will Clayton, partner in the employment team at Knights professional services explains what the law is and what employers should be doing about sexual harassment in the workplace.

What is the law?

Harassment is defined as “A harasses B if A engages in unwanted conduct related to a relevant protected characteristic and the conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.” However, if any offence caused is found to be unintentional, there will be no harassment if the victim is being “hypersensitive.” The definition of harassment applies to all protected characteristics under the Equality Act. Although sexual harassment claims can be brought by anybody, the latest statistics show that 88% are male perpetrators. Compensation for harassment is uncapped at Tribunal. Earlier this year Chelsea FC’s doctor Eva Carneiro rejected an offer of £1.2 million in her claims against the club and Jose Mourinho which included sexual harassment and settled for a higher, but undisclosed, figure. In February, a tribunal awarded £832,711 in compensation to an NHS HR director who was constructively dismissed and harassed after she rejected sexual advances from the NHS trust’s chairman.

How bad are the results?

Of the 1,553 women who took part in the TUCs survey, 52% have experienced some form of sexual harassment. Key findings from the report are:

  • 32% have been subject to unwelcome jokes of a sexual nature.
  • 28% have been subject to comments of a sexual nature about their body or clothes at work.
  • 23% have experienced unwanted touching, such as a hand on the knee or lower back.
  • 20% have experienced unwanted sexual advances.
  • 12% reported experiencing unwanted sexual touching or attempts to kiss them whilst at work
  • 4 out of 5 women did not report the sexual harassment to their employer

What is being done?

The TUC is calling to reinstate parts of the Equality Act 2010 making employers responsible for protecting staff from harassment by third parties such as customers, clients and patients. The TUC is also calling for the £1,200 employment tribunal fees to be dropped by arguing that this is restricting access to justice.

What should employers be doing?

In light of these statistics, employers should ensure that they adopt a ‘zero tolerance’ approach and ensure this is clearly communicated to all staff. Employers should review any policies and procedures that they have in place in relation to sexual harassment and follow disciplinary procedures in relation to alleged breaches. The policies and procedures should be easily accessible to staff, who should be encouraged to report any instances that occur. Employees should also be made aware of their rights and personal responsibilities regarding harassment in the workplace and we recommend they should receive training so the line between banter and harassment is clear. According to the TUC, action by employers, stronger legal protection for workers, better access to justice and strong unions will all assist in combatting the issue of sexual harassment in the workplace. Let’s hope that actions speak louder than words and next figures will come as less of a shock.

To discuss any aspects raised in this article in the context of your own business, or require advice or guidance on allegations of harassment made by an employee, contact the Knights’ Employment Team