Spotlight on: Sexual Harassment
Thursday 17th February 2011
The recent sacking of Andy Gray from Sky Sports football coverage has made the behaviour of men towards women at work a hot topic. Whatever the moral rights and wrongs of this saga, both employers and employees need to be aware that the law in this area offers wide-ranging protection to women.
There are four broad types of sex discrimination (direct, indirect, harassment and victimisation), but when it comes to comments and gestures made in the workplace the most likely claims will be for sexual harassment.
Most sexual harassment cases will be judged according to a three part test:
- Was the conduct related to sex or of a sexual nature?
- Was the conduct unwanted?
- Did it have the purpose or effect of violating the recipient's dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for the recipient?
An Employment Tribunal is likely to take a commonsense approach to the first question. By way of example, in a recent case the Employment Appeal Tribunal ruled that gossip about the paternity of an unborn child constituted harassment related to pregnancy. In the EAT's words, the gossip was 'unarguably related to pregnancy and pregnancy is related to [her] sex'.
A key point to note in relation to the second and third parts of the test is that it is not necessary for the perpetrator to intend to harass the victim. While the Tribunal must 'take into account' whether the victim's reaction to the conduct was reasonable, the victim's perception is paramount. In short, ignorance about whether conduct is 'unwanted', or about whether it would have a particular 'effect', is no defence.
Therefore, sexual harassment could take the form of one-off comments or actions meant in jest, as could regular 'banter'. The EAT has even ruled that, in certain circumstances, conduct which has long been tolerated, and participated in, could be harassment.
Employers can be vicariously liable for harassment of their employees by other employees and (since October 2010) third parties. This should focus employers' minds on being able to fulfil the defence that they took all reasonable steps to prevent it.
Ashfords LLP is regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.
