Workplace Sexual Harassment is a widespread problem that still affects numerous businesses despite greater awareness of discrimination and equality issues. Just last year a TUC study reported that more than half of all women polled had experienced some type of sexual harassment at work and the subject still appears regularly in the media. It is also important to recognize that not only women are sexually harassed in the workplace but men are increasingly affected, as are people from the LGBT community.

In this post, we discuss the definition of sexual harassment, the forms it takes and what to do if you find yourself a victim or a recipient of a sexual harassment complaint.

What is sexual harassment at work?

What we perceive as constituting sexual harassment may well vary from person to person, however, the Equality Act 2010 defines sexual harassment as –

“unwanted conduct of a sexual nature which has the purpose or effect of violating someone’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them”.

Sexual harassment at work can take a variety of different forms and can occur in a variety of settings. Some common examples include:

• indecent or suggestive remarks and innuendo
• questions, jokes, or suggestions about a colleague’s sex life
• the display of pornography in the workplace
• the circulation of pornography (by email, for example)
• unwelcome and inappropriate touching, such as hugging or kissing
• requests or demands for sexual favours
• banter of a sexual nature

Clearly, sexual harassment in the workplace isn’t always as obvious as making lewd comments about a colleague, however it is important to remember that even when indirect or unintentional, sexual harassment is often highly distressing for the victim.

As with any kind of workplace discrimination, sexual harassment can be perpetrated by anyone, including a manager, a potential employer, a colleague, a client, a patient, or a customer.

The perpetrators of sexual harassment will often make the excuse that their behaviour was meant in jest or even in a complimentary fashion. Whilst in many organisations, this may be a good enough excuse for a manager dealing with a complaint, in the eyes of the law, claiming that unwanted conduct of a sexual nature was misinterpreted is not a valid defence.

What to do about sexual harassment at work

Even with laws in place to protect employees, sexual harassment in the workplace still occurs regardless of the location, size of the company or the industry it functions in.

In recent controversies, high-profile figures from the tech industry - a sector that models its image on progress - have been forced to resign from their positions following investigations into sexual harassment. The resignation of Uber CEO Travis Kalanick and Justin Caldbeck, co-founder of Silicon Valley VC firm Binary Capital, are proof that these instances of inappropriate conduct can arise just as easily in the boardroom as the factory floor.

Knowing what to do if you witness, find yourself the victim or receive a complaint of sexual harassment at work, may not make the experience any less distressing, but it could help to ensure that the perpetrator’s conduct is prevented from continuing.

The following options should be considered if you experience sexual harassment in the workplace:

Talk to the perpetrator

• Confronting the perpetrator of the harassment can seem daunting and may not be advisable in certain circumstances. However, if you feel confident enough to explain your feelings directly, it could help to stop the behaviour and clear up any misunderstandings over what each party considers to be inappropriate behaviour.
• Describe the behaviour, its effect on you and the reasons why you would like it to stop.
• Keep detailed notes of your discussion, or any emails or letters sent. This way you have a record of the discussion should the issue be taken further.

Talk to your manager

• An employer has a responsibility to take adequate steps to tackle sexual harassment within their organisation. As an employee, speaking to your manager about the misconduct you have been a victim of means that they can take steps to prevent the behaviour from continuing. Raising the issue with a manager also clearly displays that you did not accept the harassment you experienced as banter or in a complimentary fashion.
• As a manager, once you have been informed of such conduct, you have the opportunity and a duty to investigate the matter and rectify the situation.

Talk to your HR representative

Whether an employee or the employer in question, a human resources representative will be able to give you professional advice about your situation and tell you the best steps to take in your particular circumstances.

Raise a formal grievance

If the harassment continues even after you have spoken to the perpetrator, a manager or your HR representative, you should file a formal grievance with their employer. All employers must have a formal grievance procedure in place.

If you receive a grievance from an employee you need to follow the company’s grievance procedure and take legal advice if necessary to ensure you handle the situation carefully and objectively.

If your problem is not solved through any of the above steps, then you could make a claim at an employment tribunal. Whether you’re an employee or an employer we would always recommend obtaining legal advice before embarking on a claim or defending one.

Regardless of what you attempt first, keeping detailed records of any relevant interaction with the perpetrator, a manager or your HR representative is a great way to gather evidence which can then be used to support a claim or a defence.

Who is liable for sexual harassment at work?

The Equality Act says that all employers have a duty to prevent their employees from experiencing sexual harassment at work. If they allow sexual harassment to occur then they could be liable. In addition, the actual perpetrator could be personally liable.

However, if an employer is able to prove that it took reasonable steps to prevent sexual harassment, it may be able to escape liability. Having records as evidence of what was and was not done will be particularly valuable in this instance.

Next steps

The PR nightmare that surrounded Uber following the recent resignation of their CEO is proof that no business is too big or innovative to get away with brushing sexual harassment under the carpet Employees are also becoming braver at raising issues of sexual harassment and are not afraid to involve the media if necessary.

At Wildings Solicitors, our Employment Team can assist both employees and employers to tackle this often delicate and emotive issue.

If, you have been the victim of sexual harassment, head to our Bullying or Harassment at Work page to read how our team can assist.

Alternatively, if you are an employer who is keen to protect your staff from sexual harassment and your business from costly employment tribunals, take a look at our Retain & Assure scheme for businesses – a specilaised service that gives employers complete peace of mind over Employment Law and their HR functions.