In the wake of the Harvey Weinstein revelations, which have understandably rocked Hollywood, and the “me too” social media phenomenon which has exposed the shockingly high levels of sexual harassment more generally, the BBC has produced a survey specifically in relation to sexual harassment at work.
According to the survey, around half of British women and one fifth of British men say that they have experienced sexual harassment at work. Alarmingly, of the 50% of women who say that they have been sexually harassed at work, the report found that 63% stated that they didn’t report it to anyone. In relation to male victims, 79% of male victims kept the sexual harassment at work a secret.
Unsurprisingly, the report found that around a quarter of people had been on the wrong end of inappropriate jokes and nearly one in seven people stated that they had been inappropriately touched at work. The report also discovered that more women than men were the victims of their boss or senior manager, with one in ten women who had experienced harassment claiming that it had caused them to leave their job.
At the same time, the Labour MP, Jess Philipps, revealed that she was attacked by her boss in her twenties before she became an MP. She said that her boss, who was twenty-five years older than her, tried undoing her belt when she had fallen asleep on a sofa. The now-MP said that she wished she had reported it to the police. The horrors emanating from Hollywood have led to an avalanche of revelations which may just change Western societies for the better.
The Equality Act 2010 is a piece of recent legislation which provides, amongst other things, protection from sexual harassment at work. Section 26 of the Equality Act 2010 (https://www.legislation.gov.uk/ukpga/2010/15/section/26) specifically deals with harassment at work.
(1)A person (A) harasses another (B) if—
(a)A engages in unwanted conduct related to a relevant protected characteristic, and
(b)the conduct has the purpose or effect of—
(i)violating B’s dignity, or
(ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(2)A also harasses B if—
(a)A engages in unwanted conduct of a sexual nature, and
(b)the conduct has the purpose or effect referred to in subsection (1)(b).
(3)A also harasses B if—
(a)A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex,
(b)the conduct has the purpose or effect referred to in subsection (1)(b), and
(c)because of B’s rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.
(4)In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—
(a)the perception of B;
(b)the other circumstances of the case;
(c)whether it is reasonable for the conduct to have that effect.
(5)The relevant protected characteristics are—
- gender reassignment;
- religion or belief;
- sexual orientation.
It is section 2 which is commonly referred to as sexual harassment. A one-off incident would be enough to be classified as sexual harassment, which could lead to successful sexual harassment claim. In order for an Employment Tribunal to find that there had been harassment, the conduct must have the purpose or effect of violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim. An Employment Tribunal must ask itself whether it was reasonable for the conduct to have that effect on the victim.
A common misunderstanding of employment law is that an employee needs to accumulate two years’ continuous service before they have any real, substantial employment rights. This is not so. The right not to be sexually harassed at work begins immediately upon commencement of employment, and some would say would include the recruitment process.
If sexual harassment at work causes an employee to leave, arguing that there had been a substantial breach of contract by the employer in allowing the implied duty of mutual trust and confidence between employer and employee to be torn up, then not only would the employee most likely have a claim for injury to feelings, but also a potentially significant compensatory claim to compensate the former employee for any loss of earnings, including future loss of earnings via a sex discrimination claim.
The Vento Guidelines (the guidelines which determine how much compensation should be awarded) in relation to compensation for injury to feelings have just been revised upwards, to the dismay of employers and to the advantage of employees. There is no compensatory cap in law in relation to a discrimination claim. This is different to unfair dismissal compensation which is calculated by reference to a formula and is capped.
We hope that the upshot from the Harvey Weinstein revelations, other revelations including movie stars and MPs, together with this helpful BBC report, shine an intense spotlight upon sexual harassment, particularly sexual harassment in the workplace, leading to irrevocable changes in the way that people conduct themselves in the workplace. We hope that British workplaces, in fact all workplaces, see an end to sexual harassment at work.
If you want to have a free consultation with an employment solicitor in relation to sexual harassment at work which you have suffered, please contact our Head of Employment Law, Navya Shekhar, who will arrange a free consultation with you.