Following the recent serious allegations against Hollywood titan Harvey Weinstein, thousands of women (and men) have spoken out about their own experiences of sexual harassment and assault through a simple tweet using the hashtag #MeToo. 

This movement is now urging those who have suffered such treatment to speak out to show solidarity and demonstrate just how widespread the problem is across all types of professions and industries, with both women and men affected. 

This is despite the fact that such behaviour in the workplace has been unlawful for many years.  The power of social media platforms seems to be giving people confidence to publicly speak out about their experiences and it remains to be seen if this will translate to legal action.

What can you do if you feel you have been subject to sexual harassment or assault in the workplace?

Essentially, it is unlawful for an employer to subject an employee to any kind of harassment. Sexual harassment is prohibited as:

  • unwanted conduct related to sex or conduct of a sexual nature which has the purpose or effect of violating that person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them; 
  • unwanted conduct of a sexual nature which has the above effect and because of that person's rejection of or submission to the conduct, they are treated less favourably than they would have been, had they not rejected or submitted to the conduct

It is important to note that a single incident can be sufficient to constitute harassment. If the conduct is serious enough to be reasonably considered as harassment, there may be no need for the victim to have already made it clear that the conduct is unwarranted.  In the case of Insitu Cleaning Co v Heads [1995] IRLR 4  the EAT said that would-be harassers should not be allowed to "test the water" with impunity.

The Equality and Human Rights Commission Code makes clear that "conduct" in this context can be any unwanted verbal, non-verbal or physical conduct of a sexual nature and can include unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, displaying pornographic photographs or drawings or sending emails with material of a sexual nature.

The fact that an employee has put up with such conduct, or taken part in such banter, will not necessarily show that the conduct is unwanted - this may be a coping strategy, as the tribunal has found.  Furthermore, harassment may occur at the end of a consensual relationship if conduct becomes unwanted.

Why should employers be concerned?

Anything done by an employee in the course of their employment is treated as being done by the employer, i.e. the employer may be "vicariously" liable for an act of harassment by one employee against another in the course of employment.

Employers may have a defence if they can show that they took "reasonable steps" to prevent such conduct and this might include:

  • Providing training for employees (including managers and supervisors) on appropriate behaviour at work, including in relation to equal opportunities and harassment
  • Having an equal opportunities policy and an anti-harassment and bullying policy
  • Regularly reviewing and updating those policies
  • Making those policies known to employees and providing training where necessary
  • Applying and implementing the policies appropriately and consistently
  • Ensuring employees know how to raise issues - informally and formally
  • Ensure that steps are taken to address complaints, promptly and reasonably
  • Taking disciplinary action were appropriate  

This article was written with assistance from Becky Minear, trainee solicitor.