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When does conduct amount to unlawful sexual harassment?

Published in Employment Law


Last week’s blog discussed the three types of sexual harassment claims in the workplace. But when does conduct amount to unlawful sexual harassment?

Firstly, the conduct must have happened 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.

Protecting against future claims

An employer is generally “vicariously liable” for the actions of its employees in the course of employment, so if a member of staff is found to have harassed a colleague, the employer will be held responsible.

However, there is an important exception; if the employer can show that they took all reasonable steps to prevent harassment then they will escape liability.

It is not enough, though, just to have a well-drafted anti-harassment policy; all employees must be told about it and should be aware of what they need to do if they believe they are being harassed on any grounds.

Employers should also undertake equal opportunity training with all managers at the very least and make sure that they discipline any employee guilty of harassment.

If they take all reasonable steps to prevent the conduct, then the employer will not be liable for the actions of an employee guilty of harassment, but the victim can still bring a claim against the harasser personally.

Handling claims

Many business owners 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.

“This is just one of the HR areas that we deal with at Consensus HR,” says Matthew of Consensus HR. “It highlights the importance of ensuring the correct action is taken should anybody make a claim of harassment and that a set procedure is available and followed with the team trained to understand what ‘harassment’ is?”

contact_usShould you wish to ensure that your Company has the best systems in place and development for the team to avoid falling foul of a possible claim, contact Matthew – HR Consultant at Consensus HR& Business – Herts & Beds on 01462 621243, 0774 7789279 or