In the 21st century, after all the awareness and protective legislation, you’d think that the western world would have seen an end to sexual harassment at work. This Valentine’s Day feels to many as if we are moving backwards. It’s hard not to wonder what behaviour is considered socially acceptable, when a US president is elected, despite the emergence during his campaign of the video footage of him being verbally sexually aggressive towards women.
According to research by the Trades Union Congress (TUC) last August, two-thirds of young women face sexual harassment – ranging from jokes to unwanted sexual touching or advances – at their place of work. In this investigation, 63% of young women between the ages of 18 and 24 said they had experienced sexual harassment at work, with 52% of women of all ages confirming the same.
So why aren’t more cases being brought at Employment Tribunal by victims seeking compensation for unlawful sexual harassment under the Equality Act 2010? The latest statistics from the Tribunal show only 5371 cases for sex discrimination being brought in 2015/2016, which would include sex harassment cases.
Is it that such behaviour is getting normalised by what we read and see in the press? Maybe. Perhaps the victims worry that how they feel won’t be taken seriously or that a Tribunal might think what has happened to them is too ‘minor’.
The Equality Act is clear that sexual harassment occurs when a person engages in unwanted conduct of a sexual nature. This can cover verbal, non verbal or physical conduct including unwanted sexual advances, touches, forms of sexual assault, sexual jokes, displaying pornographic photos or drawings or sending emails with material of a sexual nature. Unwanted means unwelcome or uninvited – an express objection need not be made.
How the victim feels is important, not whether the perpetrator meant to upset the victim. If the perpetrator can show they did not intend to violating the victim’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for the victim, the only check applied is one of reasonableness: a Judge will ask ‘was it reasonable that the conduct experienced by the victim had this impact’? In most cases, the answer is a resounding ‘yes’ and this overrides the perpetrator’s intent.
Could the lack of claims be because victims don’t want to rock the boat in case they lose their jobs?
The TUC study found that those on zero-hours contracts, doing precarious work or agency or hospitality work, were far more likely to be the object of sexual harassment in the workplace than those in steadier work. Clearly in those jobs, the fear would be that if they stood up to the behaviour they would not get offered any more shifts. If money is tight this could have immediate negative consequences.
Victims may not realise that there is legal protection for them if this happens. If a victim is treated less favourably because they submitted to or rejected unwanted conduct, they can claim further compensation including sums to cover any loss of earnings. This is in addition to claiming up to £33,000 as compensation for injury to feelings.
Perhaps it is because victims fear the Tribunal process and that it will cost them money?
Like any legal action, there is always a degree of pressure in bringing a case and giving evidence of what has occurred. The Tribunal system is a much more relaxed setting than a criminal court however and it is only usually at the main hearing that the victim and perpetrator would be in the same room. Although a fee is usually charged to start a claim and obtain a hearing, there is also a fee remittance system for those on a low income.
In my experience, where there is a clear account of sexual harassment by a victim in a workplace, the cases tend to settle well before there is a hearing. Often they settle before any claim needs to be brought. This greatly reduces the pressure on the victim who is able to then move on without fear of further conflict and proper arrangements can be made to repair any damaged working relationships.
The important thing for anyone experiencing sexual harassment at work is to act quickly:
- If possible make it clear to the perpetrator that you don’t appreciate their behaviour;
- Make an immediate written note of exactly what has happened and date this. If anyone witnessed the event get them to write their account down and sign this too;
- Write a letter of grievance to your employer (in accordance with the organisation’s grievance procedure);
- Ask for a period of paid leave if you don’t feel able to work on alongside the perpetrator; and
- Get advice from a solicitor quickly. There is a strict 3 month time limit to bring a claim from the date that the incident happened.
If you are an employer and you hear that an event has occurred that could amount to sexual harassment, you should move to investigate this in a balanced and sensitive way as soon as possible. Be careful to ensure the victim is not in treated adversely for raising the concern and that any grievance or disciplinary process is conducted in accordance with the ACAS Code of Practice.
Verity Slater is one of the South West’s leading employment solicitors. She is a partner in the employment team at Stephens Scown LLP, which has offices in Truro, St Austell and Exeter. To contact Verity, please call 01872 265100 or email solicitors@stephens-scown.co.uk