Sexual harassment occurs when a person engages in unwanted (i.e. unwelcome) conduct of a sexual nature that has the purpose or effect of:
- violating someone’s dignity, or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
In the first instance where an employee raises a complaint or grievance concerning sexual harassment that has occurred at work, it is important to treat it seriously and to carry out an investigation into the allegation. This applies even where the employee states they do not wish the employer to deal with the complaint formally, or to take any particular action against the alleged harasser. This is because it may damage the employer’s reputation (both internally, amongst staff, or externally, particularly given the prevalence of social media) where the employer may be seen to condone unlawful behaviour by failing to act. Inaction or an inappropriate response by the employer may also expose the employer to tribunal claims and the harasser may indeed go on to harass other employees.
Employers should bear in mind that:
- A failure to carry out a reasonable investigation into the employee’s allegation may amount to a breach of the implied duty of trust and confidence that exists between the employer and employee, entitling the employee to resign and claim constructive dismissal.
- Additionally or alternatively, the employer may be vicariously liable i.e. responsible in law for the harassing employee’s actions, unless it can show that it took all reasonable steps to prevent the sexual harassment from occurring.
In terms of the investigation into the allegation, this will be guided by the employer’s policies, if any. As part of the investigation, anyone who is identified by the complainant as a witness to the incident should be contacted in order to provide a witness statement, where they are willing to do so. Witnesses should be reminded of their duty of confidentiality. The alleged perpetrator may be suspended during the investigation as a precaution for the protection of the complainant or to prevent interference in the investigation.
Employers can choose to deal with sexual harassment complaints through their existing grievance policy or, should they have a separate policy for dealing with the allegation, through any anti-harassment, or other appropriate policy.
Disciplinary action against the harasser up to and including dismissal (depending on how serious the misconduct is) should be taken under the employee’s disciplinary procedure if a complaint of sexual harassment is upheld following investigation and a fair disciplinary process.
An example of the risks in failing to deal with an allegation of sexual harassment reasonably is highlighted by a recent tribunal case. In this case, the claimant was employed by a taxi business as a taxi operator in the employer’s office. The claimant worked night shifts of approximately 16 hours per week to fit in with her domestic arrangements, which usually prevented her from working during the weekends due to the fact she was a single parent of 3 children. The claimant raised concerns with her employer regarding one of the drivers, who was also the employer’s “business partner”, who she claimed had sexually assaulted her. The claimant also reported the allegation to the police, who advised her to record the telephone conversations she had with her employer about the matter. The driver was investigated by the police but was not arrested or charged. She also raised the issue with the minicab licensing team at the local council, at the same time as raising a grievance with her employer.
In that case, the tribunal found that the employer was vicariously liable for sexual harassment by requiring the claimant to work with her colleague that she had previously accused of sexual harassment and, who the tribunal found, had in fact sexually harassed her. Based on the covertly recorded telephone calls, the tribunal found that her employer had responded to the allegation in a dismissive way, essentially ignoring the claimant’s concerns completely.
The tribunal found that giving the claimant a choice between not working at all for the employer; working the shifts she wanted to work and that she usually worked but with someone who had sexually harassed her; or working day shifts that it was inconvenient or impracticable for her to work and that she did not want to work amounted to unlawful discrimination in the form of sexual harassment. The tribunal found that the employer’s response also amounted to a breach of trust and confidence, entitling the employee to resign and claim constructive dismissal.