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Sexual harassment in the workplace

22nd February, 2018

Helen Watson, Partner and Head of Employment Law at Aaron and Partners LLP, examines two sexual harassment cases.

Sexual harassment has been ever prevalent across the media again following a string of allegations made against Harvey Weinstein, a leading movie producer, in early October 2017. This led on to a number of sexual harassment allegations being made against other powerful men including Kevin Spacey, Ben Affleck and George H.W. Bush.

Unfortunately, sexual harassment appears to be becoming increasingly common in the modern world and therefore, this article will focus on the rights of individuals in the workplace in relation to sexual harassment.

Harassment – the Law

In relation to the protected characteristic of sex, the Equality Act 2010 (“EqA”) prohibits three forms of harassment:
• Harassment related to sex;
• Sexual harassment; and
• Less favourable treatment because the employee rejects or submits to harassment.

For the purposes of this article, we will focus on sexual harassment. Sexual harassment occurs where both:
• A engages in unwanted conduct of a sexual nature; and
• The conduct has the purpose or effect of either violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
In deciding whether the conduct has the effect referred to above, there are a number of factors which need to be taken into account including B’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

Conduct of a sexual nature can be any unwanted verbal, non-verbal or physical conduct of a sexual nature. It can include unwelcome sexual advances, touching, forms or sexual assault, sexual jokes, displaying pornographic photographs or drawings or sending emails with material of a sexual nature.

A claim for sexual harassment should be brought within three months of the act complained of. Acts of sexual harassment occurring more than three months before the claim is brought may still form the basis of a claim if that act is part of conduct extending over a period, and the claim is brought within three months of the end of that period.

Employer’s Vicarious Liability

Any act of sexual harassment done by an employee in the course of their employment is treated as having also been done by the employer. This is the case regardless of whether the employee’s acts were done with the employer’s knowledge or approval. Therefore, an employer can be vicariously liable for harassment committed by an employee in the course of their employment. It is important to note that the employer will only be liable for the actions if they are done, ‘in the course of employment’. However, harassment of an employee by a colleague in the workplace would almost certainly be covered.

There is a defence available to the employer. The employer will have a defence if they have taken all reasonable steps to prevent the employee committing the harassment. These steps must have been taken before the act of harassment occurred. Reasonable steps will usually include:
• Having equal opportunities and anti-harassment and bullying  policies which are reviewed as appropriate and implemented;
• Ensuring all employees are aware of the policies and their implications;
• Training mangers and supervisors on equal opportunities and harassment issues; and
• Taking steps to deal effectively with complaints, including taking disciplinary action where appropriate.

Smith v Renrod Limited ET/1400166/15

The Facts
Miss Smith brought a number of claims, including one of sexual harassment, against her employer, Renrod Limited (“Renrod”). Renrod was a Franchise Motor Dealer. Miss Smith was employed as a Sales Executive, was based at their Skoda site in Bath, and reported to her manager, Joe Snowball.
Miss Smith claimed that she was sexually harassed by her manager, Mr Snowball, and alleged that his actions included:
• Making a comment about “thinking about picking you up and f***ing you on the desk” in April 2014;
• Making an attempt to kiss Miss Smith in the Administration Office;
• Pestering Miss Smith about her private life including making comments about her sex life and relationship with her boyfriend.

Employment Tribunal Decision
The Tribunal found that the conduct set out above, which is clearly of a sexual nature, was carried out by Mr Snowball. It also found that the conduct was unwanted.

The Tribunal then went on to consider whether the unwanted conduct had the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for Miss Smith. The Tribunal stated that they could not positively conclude that the conduct had the purpose but they did believe that it had the effect.

When making that decision the Tribunal considered that there was a culture of sexual ‘banter’ and sexual behaviour at the workplace which Miss Smith, who the Tribunal described as relatively robust, at times participated in and even initiated. However, the Tribunal considered that Miss Smith worked in a male dominated industry and she may have felt compelled to join in with such ‘banter’, and not take offence at such conduct, in order to be on the same level as her male colleagues. It went on to state that the comments and conduct of Mr Snowball went beyond that which was acceptable to Miss Smith. Further, it took into account the fact that Mr Snowball was Miss Smith’s manager and stated that the fact it was her manager doing these things made the conduct offensive and intimidating and complaining about it would not have been easy for Miss Smith.

The Tribunal concluded that Mr Snowball’s conduct amounted to harassment.

Elworthy v Your-Move.co.uk Ltd ET 2303025/2015

The Facts
Your-Move is a national estate agency. Mr Elworthy had been employed as a senior financial consultant by Your-Move since 2 June 2008. His role was to offer mortgage advice to customers. In January 2015 Ms Sarah Thompson became Mr Elworthy’s Line Manager. Mr Elworthy brought a number of claims against Your-Move, including sexual harassment.

On 20 December 2013 Mr Elworthy attended a senior consultant’s reward lunch. Mr Elworthy was standing with around four other people discussing sales targets as it was coming up to the end of the year. Mr Elworthy alleged that Ms Thompson stated to him that she would give him a blow job if he banked £180,000. Ms Thompson denied making this statement.

At least one other person also heard the comment, being Mr Barrett, who stated that he took the comment as a joke and that the conversation just continued without a break. Mr Barrett was friends with Mr Elworthy but stated that he could not recall Mr Elworthy complaining to him about the comment.

The first time Mr Elworthy complained about the comment was during a disciplinary hearing, after he had handed over a resignation letter, on 16 September 2015, almost two years after the event. Mr Elworthy’s position was that he did not complain prior to this date for fear of losing his job. Mr Elworthy told the Tribunal that the comment left him feeling ‘not great’ and ‘a bit uncomfortable’. When asked during cross examination whether he saw it as sexualised banter he replied that he did not see it that way although he accepted that it was a one-off comment.

Employment Tribunal Decision
The Tribunal found that the comment was made by Ms Thompson. However, the Tribunal went on to consider that Mr Elworthy did not find the comment upsetting, offensive, hostile, degrading, humiliating or intimidating. In coming to that decision the Tribunal took into account that Mr Elworthy was a persistent challenger of issues at work and Mr Elworthy accepted that he is not afraid to raise grievances and complaints in a robust manner. Therefore, if the comment had that that effect, it is likely Mr Elworthy would have raised a complaint sooner.
Further, the Tribunal stated that Ms Thompson did not make the statement with the purpose of it having that effect. The statement was made in a jovial manner and in a social context. Mr Barrett’s evidence supported this.

Mr Elworthy’s claim for sexual harassment failed.

Comments

A benefit of the prevalence of sexual harassment allegations in the media is that it is showing individuals that speaking out is becoming easier and they should not be embarrassed of being the victim of sexual harassment, whether they are man or woman. It should also bring the issue to the fore-front of employers’ minds who should ensure that they are aware of the issues and their obligations in relation to prevention sexual harassment in the workplace.

For any further advice regarding sexual harassment in the workplace, please our Employment department at Aaron and Partners LLP

As produced by Helen Watson for Gap Insight January/February 2018

To read the January/February 2018 issue of Gap Insight in full please click here

Helen Watson

Partner & Head of Employment Law
Email: [email protected]
Tel: 01244 405565

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