Proving Discrimination at Work – Proving Workplace Sexual Harassment

Sexual harassment at work is a widespread issue which can affect employees across many different industries. The British Journal of Surgery’s report published in September 2023 is a stark example of this. Of those who participated in the report:

• nearly 2/3 of women and 1/4 men reported being the victims of sexual harassment;
• 5% of women and 81% of men reported witnessing sexual harassment;
• only 14.5% of women considered the General Medical Council to be adequate in dealing with issues of sexual misconduct.

The position with NHS surgeons was exacerbated by the hierarchal structure and apparent reluctance of employer organisations to grapple with what appears to have been a widely known issue and to hold senior surgeons accountable. We have also seen similar allegations against McDonald’s, the BBC and the Metropolitan police, and these are just the high profile cases that hit the news.

So what do you do if you work in an environment where sexual harassment is prevalent and/or if you have experienced it yourself? In this video interview and below, we run through the key aspects of the legal definition of sexual harassment and then consider the sort of evidence you should collate to support an allegation of sexual harassment.

The tips in this video are general advice only; if you have any specific concerns about sexual misconduct at work the Employment team at Edwin Coe are experts in this field and are here to support you.

Legal Definition

The Equality Act 2010 provides that sexual harassment is where there has been:

• unwanted conduct, of a sexual nature;
• which has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

Conduct of a sexual nature need only relate to a single incident, it can occur in or outside of the workplace, and can include a wide range of behaviours including but not limited to:

• flirting, or making sexual remarks about someone’s body, clothing or appearance;
• physical contact and touching;
• asking questions about someone’s sex life;
• displaying or sharing pornographic or other sexual content;
• treating someone less favourably in circumstances where they have rejected or submitted to sexual advances or other unwanted conduct of a sexual nature.

Was the conduct unwanted?

Whether or not conduct of a sexual nature will be considered to be ‘unwanted’ is generally a subjective test. There may be circumstances where this is obvious, for instance if an individual has expressly made the perpetrator aware that their conduct is unwanted. However, a victim of sexual harassment does not have to expressly object to sexual conduct before it will be considered to be ‘unwanted’. For example, where there is a power imbalance you may feel unable to expressly call out unwanted behaviour for fear of reprisal and the Tribunal does recognise this.

Intention or effect?

For unwanted conduct of a sexual nature to amount to sexual harassment, the conduct must have had the purpose or effect of violating your dignity or creating an intimidating, hostile, degrading etc. environment. It is often difficult to prove that a perpetrator intended their actions to create such an environment. However, the perpetrator’s intention does not matter when considering the effect of the conduct, which is a subjective test based on how the conduct made you feel. An Employment Tribunal will then look at the overall context to consider whether on an objective basis, it was ‘reasonable’ for you to feel that way.

What evidence should you collate if you have been sexually harassed?

Acts of sexual harassment are often carried out privately and it is a case of one individual’s word against another’s. This presents particular challenges when trying to prove your case, but taking immediate proactive steps to record what happened and how it impacted on you will put you in the strongest position when raising concerns with your employer or in the Tribunal:

• Collate factual evidence to support your complaint. This could include emails, text or WhatsApp messages or possibly CCTV footage;
• Make a note of individuals who witnessed inappropriate conduct who may be able to support your version of events;
• Make a contemporaneous record of any inappropriate conduct you have experienced, including time, date and location. This record could take many forms, including but not limited to handwritten notes, an email to yourself or a diary entries. Do not limit it to the event itself; make sure to set out why the conduct was sexual in nature (if not immediately obvious) and how the conduct in question made you feel;
• Talk to someone about what happened as they may be able to act as a witness to support a complaint, even if they did not actually witness the behaviour in question. This could be to a colleague, friend outside work, a partner, a trade union representative or someone in HR. Ensure there is some written contemporaneous record of your discussion;
• If you feel able and it is appropriate in your specific circumstances, record communicating to the perpetrator that the conduct in question is/was unwanted and why.

New obligation on employers

Since recording the above video interview, a new obligation on employers has been introduced (with effect from October 2024) which places an additional proactive obligation on employers to take reasonable steps to prevent sexual harassment. Identifying what your employer should have done differently in the particular circumstances of your case will also be important going forwards, when raising your concerns, and identifying what your employer should do differently to prevent similar occurrences in the future will be a key element of resolving your grievance. See our blog for further information on this new obligation here.

Raising a Grievance

You may need to raise your concerns formally for your employer to address them. Your employer should have a formal procedure in place to deal with grievances and they have a duty to take your complaint seriously and to hear it fairly and without delay. You are also protected against less favourable treatment for having raised your concerns. Therefore, depending on the specific circumstances of your case, (for example, if you fear retaliation from the perpetrator), you may be better protected by raising a grievance.

Raising a grievance can be stressful given the often traumatic nature of the concerns being raised and the fear of retaliation. We routinely work with clients in these circumstances and are here to support you. We can help you put together your strongest case when raising your grievance, taking into account the considerations above, and if your employer does not resolve your grievance, we can help you to either assert your claim in the Tribunal whilst you continue to work for your employer, or to agree severance terms at the highest level.

If you have concerns about sexual harassment at work, please contact Emma Sangeelee, George Orman or any member of the Employment team. We are experts in this field and are here to help.

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