Sexual Harassment

An employee who has been subject to sexual harassment at work is entitled to take action.

A claim for sexual harassment can be made to the Employment Tribunal under the Equality Act 2010. 

Harassment under the Equality Act 2010

There are 3 different types of harassment claims under the Equality Act 2010 (s26) :

• Harassment of anyone with a protected characteristic. 

The Act uses a broad definition of harassment – making it unlawful to harass someone where conduct is ‘related to’ a protected characteristic and has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive atmosphere for the complainant or violating the complainant’s dignity. Protected characteristics are 

• Sex
• Race
• Disability
• Religion or belief
• Age
• Gender reassignment
• Sexual orientation

Examples would include making “jokes” about females, making derogatory comments about a race or religion or humiliating someone because of their age or disability.

Note that marriage and civil partnership and pregnancy and maternity are not included as protected characteristics in relation to harassment. However, harassment on these grounds may well constitute unlawful sexual harassment.

After the Enterprise and Regulatory Reform Act 2013 the substantive changes that remain are as follows:

 See Nixon v (1) Ross Coates Solicitors, (2) Coates UKEAT/0108/10 (6 August 2010, unreported) where the Employment Appeal Tribunal (“EAT”) held that rumours and gossip relating to an employee’s pregnancy and the possible paternity of her unborn child could both amount to unlawful pregnancy discrimination and unlawful sexual harassment).

• ‘the extension of the protection to colour and nationality;
• the uniform protection against perceived and associative harassment.’

• Sexual harassment – unwanted conduct of a sexual nature where this has the same purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive atmosphere for the complainant or violating the complainant’s dignity as (1) above.

  Examples would include persistent requests for dates, inappropriate sexual comments or suggestions, sexually explicit jokes or innuendo, leering or suggestive gestures, invasion of your personal space, inappropriate touching, and sexual attack.

• Harassment because someone has either submitted to or rejected sexual harassment or harassment related to sex or gender reassignment.

  Examples would include making derogatory comments or unfair criticism because an individual has rejected sexual advances or, in contrast, felt forced to go on a date.

Guidance on definition of “harassment”

The Employment Appeal Tribunal (“EAT”) stated that the approach to be taken to harassment claims should be broadly the same, irrespective of the type of harassment. It focuses on three elements: 

1. unwanted conduct; 

1. having the purpose or effect of either:

(i) violating the claimant’s dignity; or 

(ii) creating an adverse environment for him/her; 

1. on the prohibited grounds.

(Richmond Pharmacology v Dhaliwal [2009] IRLR 336, EAT)

One significant difference arises in respect of the third element identified in Dhaliwal: the language of EqA 2010 s 26 is ‘related to’, rather than ‘on grounds of’. The Equality Act is broader (see paragraph 7.9 of the Code of Practice on the Equality Act

The end result in Dhaliwal itself was that it was held that the employment tribunal had been entitled to find harassment on the facts, but the EAT concluded with a warning that the concept of harassment does have its boundaries: ‘We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended.”

What is sexual harassment?

Sexual harassment is unwanted conduct of a sexual nature.

The EHRC has produced Guidance for sexual harassment cases: “Sexual harassment and harassment at work” to help recognise and deal with harassment at work. It is available here

Sexual harassment can include, but is not limited to acts such as: 

• spoken words 
• banter 
• written words 
• posts or contact on social media 
• imagery 
• graffiti 
• physical gestures 
• facial expressions 
• mimicry 
• jokes or pranks 
• acts affecting a person’s surroundings 
• aggression, and 
• physical behaviour towards a person or their property. 

(see 2.8 of EHRC Guidance)

The word ‘unwanted’ means essentially the same as ‘unwelcome’ or ‘uninvited’. 

Unwanted means ‘unwanted by the worker’ and should be considered from the worker’s subjective point of view. However, external factors may be considered by a tribunal in deciding whether the conduct was unwanted.  In some cases, it will be obvious that conduct is unwanted because it would plainly violate a person’s dignity.

There may be circumstances in which a course of conduct is not unwanted in the earlier stages, but at some point ‘oversteps the mark’ and becomes unwanted. 

Harassment will be unlawful if the conduct had either the purpose or the effect of violating the complainant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. 

A claim based on ‘purpose’ would require a consideration of the alleged harasser’s motive or intention. The person against whom the accusation is made is unlikely to simply admit to an unlawful purpose. 

Where the claim simply relies on the ‘effect’ of the conduct in question, the perpetrator’s motive or intention—which could be entirely innocent – is not relevant. The assessment requires the Tribunal to consider the effect of the conduct from the complainant’s point of view (the subjective element). It must also ask, however, whether it was reasonable of the complainant to consider that conduct was harassment (the objective element). The fact that the claimant is peculiarly sensitive to the treatment accorded him or her does not necessarily mean that harassment will be shown to exist.

In Driskel v Peninsula Business Services Ltd [2000] IRLR 151, the EAT held that although the ultimate judgment as to whether conduct amounts to unlawful harassment involves an objective assessment by the tribunal of all the facts, the claimant’s subjective perception of the conduct in question must also be considered. It is a useful case because there is discussion and explanation of how this works. When fellow workers use homophobic or sexist language to each other (or language that is insulting to another protected characteristic like sex) context is important. There is not an inflexible rule as to whether one, both or neither would be found to have committed unlawful harassment, it will always depend on context. 

For example, workers can engage in friendly teasing that both enjoy. This is not harassment. However, where one party seeks to harasses another the fact that the receiving party has responded in some way, does not mean that harassment is permitted. 

The difficulty is that it is not always clear where the line is to be drawn between what the worker has accepted (perhaps even encouraged) and what goes beyond that and constitutes harassment, see Smith v Ideal Shopping Direct Ltd UKEAT/0590/12, [2013] EqLR 943.

Note : It is not necessary for the victim and perpetrator to be of the opposite sex or race. If a male employee treats another male in a sexually abusive fashion this can be unlawful discrimination in circumstances where he would not have treated a female colleague in the same way. The kind of same-sex contact and attempted contact that formed the basis of the complaint of harassment upheld in Walker v BHS Ltd [2005] All ER (D) 146 (May), EAT, is sufficient.

What steps can an employee take if they suffer harassment ? 

• Tell the person to stop (if this is possible);
• Keep diary entries of all acts that have taken place : date, time, description of the act and any important evidence;
• Inform management or Human Resources of the harassment;
• Seek advice and support from a trade union;
• Draft a formal grievance (this should be drafted in detail and set out in a logical order)
• Take early legal advice about the avenues open;
• Issue a claim in the Employment Tribunal.

Sexual harassment claim in the Employment Tribunal

A claim can be taken to an Employment Tribunal. It must be made within three months minus one day of the date of the harassment. 

A series of acts is only finished when the date of the last act is undertaken (which would mean that if the last act is in time then all of the acts are in time). Further, it is possible to argue that it would be “just and equitable” to extend time.

A claim can be made here:

It is essential to properly set out the claim. Since harassment is a separate cause of action if the facts and law are not set out fully it is possible for an Employment Tribunal to decide that a claim has not been made in time.