There are three types of sexual harassment at work: the first is unwanted conduct of a sexual nature, which has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
Historically, pictures of naked women in the workplace would be a good example, but the modern day equivalent is sexually explicit jokes by email.
Also, inappropriate touching or comments on a female employee’s chest, persistent requests for dates and sexual innuendos have all been found to be sexual harassment.
However, there is a second definition: sex-related harassment, which is where there is unwanted conduct related to the person’s gender, which – again – has the purpose or effect of violating their dignity or creating an unpleasant environment.
For example, cases have decided that gossip about the paternity of an unborn child can be harassment on grounds of sex, as could hostile comments about childcare arrangements when a female employee has to constantly leave work early to care for her young children.
Even something such as putting materials up on a high shelf where none of the (naturally shorter) female staff can reach them could be viewed as harassment.
The third type of sexual harassment is if an employee rejects sexual advances or submits to them, and is then treated less favourably by the harasser.
Conduct must be in the course of employment. However, this is a sensitive grey area and the definition can sometimes extend to social events outside of work.
If the conduct was not “unwanted” it will not be harassment, but a note of caution: if the harassed employee is very junior, there is a risk that although they appear to be joining in and the actions are not “unwanted”, they will say that they felt they had to join in with the jokes or risk losing their jobs, and a tribunal may accept this.
A tribunal must also consider whether or not it is reasonable for the conduct to have the effect alleged – if no reasonable person would be offended and the employee is simply oversensitive, then it will not be sexual harassment.
The big danger for businesses is that they allow joke emails and inappropriate language in the workplace without complaints, but the moment a manager needs to have a difficult conversation with an employee, around performance, conduct or redundancy, suddenly offence is taken and harassment is alleged.
Furthermore, the widespread use of jokes and inappropriate language could be put forward to suggest institutional sexism.
Many HR professionals have had the situation where an employee comes to them and alleges harassment, but then says that they do not want to take it any further.
The policy should make it clear that any such allegation is very serious and will be investigated.
Claims of this nature should be taken seriously, suspension of the alleged harasser considered and witness statements taken as soon as possible. Harassment findings should be dealt with seriously and consistently.
Even if the employer does not find in favour of the alleged victim, the employee still has the option to bring an employment tribunal claim, while still in employment, and the tribunal will consider all of the evidence when reaching its decision.
If you feel that you need advice or support in dealing with harassment, victimisation or bullying at work then please firstname.lastname@example.org and,