Sexual harassment in the workplace can have devasting effects and the law seeks to protect victims of this conduct. Being sexually harassed at work can leave you feeling helpless and like there is no recourse, but there are steps you can take. Set out below is the definition of harassment and sexual harassment in the workplace, so you can identify what amounts to unlawful conduct.
There are three types of harassment:
- harassment related to a ‘relevant protected characteristic’;
- sexual harassment; and
- less favourable treatment of a worker because they submit to, or reject, sexual harassment or harassment related to sex or gender reassignment
Sexual harassment is the workplace is a claim with no minimum service requirement.
For the purposes of this article, we will be addressing the second type of harassment which is harassment related to sexual harassment.
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What is sexual harassment in the workplace?
Sexual harassment occurs when a person engages in unwanted conduct which is of a sexual nature and is defined in s. 26 (2) Equality Act.
The conduct ‘of a sexual nature’ can cover verbal, non-verbal or physical conduct including unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, displaying pornographic photographs or drawings or sending emails with material of a sexual nature.
It can also be one singular comment. It does have to be continuous harassment.
There are three types of sexual harassment
- Unwanted conduct of a sexual nature which has the purpose of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
- Where the has been a rejection of sexual advances, or acceptance, but you are subsequently treated less favourably by the person who has harassed you.
- Sex-related harassment, is where there is unwanted conduct of a sexual nature which relates to your gender, which again, has the purpose or effect of violating your dignity or creating an unpleasant environment. This would include, for example, comments about childcare arrangements and you have to leave work early to care for your young children.
Example: Lisa works in a restaurant.
Her supervisor Michael regularly makes comments about women and that Lisa has different hours because she needs to pick up her daughter from school. This is harassment related to a person’s sex.
Michael also starts making sexual comments about Lisa’s body, getting very close to her and resting his hand on her arm. It makes Lisa feel very uncomfortable and intimidated. This is sexual harassment.
Other examples include:
- Sexual comments or jokes;
- Displaying sexually graphic pictures, posters or photos;
- Suggestive looks, staring or leering;
- Propositions and sexual advances; and
- Making promises in return for sexual favours
What amounts to sexual harassment in the workplace?
The conduct must usually be made in the course of employment at work, although it can also extend to social work events outside of usual working hours. This could be at social gatherings or work parties.
If you were happy for the conduct which you are now complaining about, then it could be argued that the conduct was not “unwanted”. There are exceptions to this, for example, where you may have been in a junior position and felt obliged to join in with banter or conduct.
The motive for the harassment is completely irrelevant. The issue is the effect on the person who is on the receiving end of the behaviour.
If you complain about sexual harassment in the workplace, this will likely be a “protected act” for the purposes of victimisation. IT is unlawful to be subjected to a detriment because you did a protected act, we cover this in more detail HERE.
Can I still pursue take action even if I have remained silent?
Yes. The tribunal does understand that your relationship with the person who is harassing may not be your equal ( for example, this could be a manager). It is considered normal and natural that you would be slightly concerned about reporting the matter.
Who is liable for sexual harassment at work?
Under the Equality Act 2010 both the colleague who has sexually harassed you and the business that employed you may be liable in any Employment Tribunal claim.
Example: If you’ve been sexually harassed at work by a colleague of yours then both your colleague and the business that employs you may be liable for sexual harassment (unless your employer can successfully employ a defence to your harassment claim.
What can I do if I have been sexually harassed in the workplace?
- If it is safe to do so, tell the harasser to stop.
- Keep a diary of anything that has happened. This will be good evidence to support you. Be specific, so include dates, times, locations, and what happened.
- Take professional legal advice. How you handle the situation is important and may vary depending on the specific situation.
- See your doctor to help with the impact of the harassment.
Sexual Harassment- Compensation
If there has been sexual harassment in the workplace, the compensation available (if presenting a Tribunal claim) is the same as other discrimination claims.
However, with the right guidance, you may be able to obtain compensation at an earlier stage and avoid the need to make a lengthy Tribunal claim.
When a sexual harassment claim succeeds, an employment tribunal may do some or all of the following:
- Order the Respondent to pay compensation.
- Make an appropriate recommendation aimed at reducing the adverse effect of the victimisation on both the Claimant and the wider workforce.
- Make a declaration as to the rights of the Claimant and the Respondent in relation to the matters to which the proceedings relate.
The most common “remedies” available in claims for sexual harassment are:
Financial Loss – This covers the financial loss caused by sexual harassment.
Injury to Feelings – An award for injury to feelings is to compensate and not to punish, and is designed to address the anger, distress, and upset caused by the sexual harassment. The award for injury to feelings is separated into three bands:
Bands for Injury to Feelings:
| Band | Vento (December 2002) | Da’Bell (September 2009) | Updated – Claim brought after 06 April 2022 |
|---|---|---|---|
| Top band for the most serious cases, such as where there has been a lengthy campaign of harassment. wards can exceed this only in the most exceptional cases. | £15,000 – £25,000 | £18,000 – £30,000 | £29,600 to £49,300 |
| Middle band for serious cases which do not merit an award in the highest band. | £5,000 – £15,000 | £6,000 – £18,000 | £9,900 to £29,600 |
| Bottom band for less serious cases, such as a one-off incident or an isolated event. | £500 – £5,000 | £600 – £6,000 | £990 – £9,900 |
Personal Injury – This can form part of your claim if an act of sexual harassment caused personal injury, such as PTSD. There is clearly an overlap with injury to feelings.
The Tribunal can also make an award for the following, but these are rare:
Aggravated damages – Aggravated damages are awarded in the most serious cases where the behaviour of the Respondent has aggravated the Claimant’s injury to feelings.
Exemplary or “punitive” damages – Such an award is rare and can be awarded to punish the Respondent, rather than compensate the Claimant. This award is available in limited cases where the compensation itself is an insufficient punishment and the Respondent’s conduct is either:
- Oppressive, arbitrary or unconstitutional action by servants of the government.
- Calculated to make a profit which could exceed the compensation otherwise payable to the Claimant.