The TUC survey suggesting more than half of women have experienced sexual harassment in the workplace presents the responses of around 1,500 women who are working or who have ever had a job and was undertaken in conjunction with an Everyday Sexism Project called Still just a bit of banter?
Not only did 52% of the women report that they had experienced sexual harassment at work, but the TUC's website reports the following:
- nearly one in three (32%) of women have been subject to unwelcome jokes of a sexual nature while at work;
- more than one in four (28%) of women have been the subject of comments of a sexual nature about their body or clothes at work;
- nearly a quarter (23%) of women have experienced unwanted touching – like a hand on the knee or lower back at work;
- a fifth (20%) of women have experienced unwanted verbal sexual advances at work; and
- around one in eight (12%) women have experienced unwanted sexual touching or attempts to kiss them at work.
The survey also demonstrated that few women report any sexual harassment with 79% not informing their employer and 15% of this group explaining that they failed to report it for fear it could damage their career prospects. One in five women reported that the perpetrator was their manager or someone else with direct authority over them, which arguably could also be a factor which dissuades women from reporting the problem.
What amounts to sexual harassment, according to the TUC, could include suggestive remarks, jokes about a colleague’s sex life, circulating pornography, inappropriate touching, hugging or kissing, or demands for sexual favours. The Equality Act 2010, which prohibits sexual harassment in the workplace, defines it as where a person, A, engages in unwanted conduct of a sexual nature and the conduct has the purpose or effect of either violating another person, B's, dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. The Equality and Human Rights Commission has explained that "unwanted conduct" could be unwanted verbal, non-verbal or physical conduct of a sexual nature and that conduct of a sexual nature can include unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, displaying pornographic photographs or drawings or sending emails with material of a sexual nature. Therefore, it should be clear that what can amount to sexual harassment is not just conduct which one might describe as obvious cases of sexual harassment, such as unwanted touching, but can also include jokes of a sexual nature provided they have the purpose or effect of either violating another's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
An Employment Tribunal in determining whether or not the conduct in question has had this purpose or effect will consider the perception of the individual experiencing the conduct; the surrounding circumstances; and whether or not it was reasonable for the conduct to have had that effect. Therefore, while the individual's subjective view point will be taken into account, an element of objectivity is added to the assessment by the fact that if a Tribunal does not believe it was reasonable for the conduct to have had that effect, it will not be held to be sexual harassment.
It is worth mentioning that not only does the Equality Act 2010 prohibit sexual harassment, it also prohibits harassment on the grounds of an individual's sex. Such harassment occurs where an individual, A, engages in unwanted conduct related to sex; and the conduct has the purpose or effect of either violating another, B's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. The Tribunal uses the same factors mentioned in relation to sexual harassment to determine whether or not the conduct has had this purpose or effect. Conduct which relates to sex can include conduct which is motivated by a person's sex, such as male staff putting equipment on a high shelf to stop a female employee from being able to reach it. It can also include conduct which, due to the form it takes, relates to someone's sex, such as sexist jokes.
The recent survey by the TUC should be of concern to employers, not only because it demonstrates potential liabilities for employers, but also because employers should be concerned to stop any such behaviours in the work force which can have a significant negative impact on the individual experiencing the treatment. Moreover, such behaviours can have a wider impact on the workforce as a whole through the environment it creates and this in turn can effect productivity and increase staff turnover.
All employers should have a Bullying and Harassment Policy in place which makes clear that any form of sexual harassment is prohibited and will not be tolerated. The Policy should also clearly set out how an individual can raise any issues, for example, by following the employer's Grievance Policy. It should also set out who the employee should speak to where it is their line manager that they believe is guilty of the harassment.
An employer will be liable where another employee sexually harasses another unless they can demonstrate that they have taken all reasonable steps to prevent the conduct. This not only includes having a robust policy in place, but also ensuring that staff are provided with training on its contents. This could take place as part of any new employee's induction and, in addition, any members of management should be provided with annual training. While employers should also deal properly with any complaints of sexual harassment which are raised, this will not be enough to establish the reasonable steps defence and instead, action must have been taken prior to the alleged conduct, such as training.
If you are an employer and do not have a Bullying and Harassment Policy in place, this is something which we can assist you with. We can also provide training to staff to help ensure that the reasonable steps defence can be made out.