Preventing sexual harassment in the workplace – what can employers learn from the Harvey Weinstein affair?

It is hard to imagine that anyone could have missed the furore surrounding the allegations against Harvey Weinstein. Unfortunately sexual harassment has not yet been relegated to the annals of history and it remains an unfortunate feature of working life for some men and women. In October 2017 a recent survey by the BBC reported that half of women and one fifth of men have been sexually harassed at work. What constitutes harassment can be obvious but sometimes it can be more subtle and it is important that employers recognise what could constitute harassment and how to protect employees against it.

What is sexual harassment?

In law there are two types of harassment related to sex – sexual harassment and sex harassment.

Sexual harassment is where a person engages in unwanted conduct of a sexual nature which has the purpose or effect of creating an intimidating or offensive environment. This includes unwelcome sexual advances, touching, sexual jokes, displaying pornographic photographs, drawings or sending emails with material of a sexual nature.

Sex harassment is not so obvious to detect; it may be intentional bullying, but can also be subtle and insidious or even unintentional. It occurs where a person engages in unwanted conduct which, regardless of the form it takes, is by reason of sex. For example, the actions of a male employee who places tools on a high shelf to make them hard to reach by a female employee, or a female employee who singles out male colleagues for ridicule, will constitute sex harassment.

What should businesses do?

Businesses can be held vicariously liable for the actions of their workers. However, there is a defence available to an employer if it can show that it took “all reasonable steps” to prevent the act of discrimination. All employers should ensure that they have comprehensive Equal Opportunities and Anti-harassment policies. Disciplinary Procedures should be specific that harassment can be a dismissible offence. This is important not only as guidance for workers but also because in the event an employer needs to defend a claim, an Employment Tribunal will expect a business to have these documents in place. However, it is not sufficient to simply have the paper documents, regular training programmes should also form part of a business’ commitment against harassment.

We can assist you with drafting of documentation and ensuring that existing documentation is up-to-date. We also provide bespoke training services.

If you have any questions regarding this topic or any employment issue, please contact Linky Trott, or any member of the Edwin Coe Employment team.

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