Sexual harassment in the workplace
Private medical or dental practices are often small businesses that involve close working relationships between staff and close contact with patients. Consequently they are at a higher risk of receiving difficult allegations of sexual harassment.
This article sets out the statutory framework for sexual harassment in the workplace and provides practical guidance for dealing with these sensitive, complex and costly cases.
The Equality Act 2010
The Equality Action 2010 (“EqA”) prohibits discrimination in the workplace. Under the EqA workers are protected against discrimination, including harassment and victimisation related to nine prescribed protected characteristics, which include sex and sexual orientation.
The EqA provides protection against discrimination to individuals in employment which is widely defined to include individuals working under:
- a contract of employment;
- a contract of apprenticeship; and
- a contract to do work personally.
This means individuals who would ordinarily be classed as self-employed are likely to be afforded protection against discrimination if the contract under which they work obliges them to perform the work personally, meaning they cannot substitute or sub-contract the work to someone else.
The EqA provides protection against three different forms of harassment, specifically:
- unwanted conduct related to sex that has the purpose or effect of either violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person;
- unwanted conduct of a sexual nature that has the purpose or effect of either violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person; and
- less favourable treatment of a person on account of rejecting or submitting to unwanted conduct of a sexual nature.
When assessing the effect of alleged unwanted conduct three factors must be considered, namely:
- the perception of the complainant;
- the other circumstances of the case; and
- whether it is reasonable for the conduct to have that effect.
This is therefore a subjective assessment balanced by relevant factors such as the nature of the relationship between the parties (i.e. status/seniority) and the sensitivity of the complainant. If a complainant is overly sensitive the conduct complained of may not constitute harassment.
What is Unwanted Conduct?
Unwanted conduct is not defined in the EqA but case law has developed clarification on how this will be assessed, for example:
- it is well-established that there is no need for a worker to have stated conduct is unwanted before it can constitute harassment;
- a one-off incident can constitute sexual harassment;
- the fact that a worker might have suffered in silence (even for years) does not mean that conduct cannot constitute harassment. This is likely to be relevant in cases involving junior/younger workers being harassed by senior/older staff – a common dynamic in the practice environment; and
- a worker’s participation in sexual banter would not preclude conduct being unwanted and harassment. The participation could be a coping mechanism or because the worker did not wish to show discontent for fear of reprisals.
What constitutes sexual harassment?
Sexual harassment can take many forms. It can be verbal, non-verbal and/or physical and take the form of: unwelcome advances, touching, sexual jokes, displaying pornographic images or sending material of a sexual nature.
Some behaviour is easily categorised as sexual harassment, for example a male colleague commenting on a female colleague’s body. However, often the position will be less clear. For example, the Employment Tribunal (ET) determined that a female worker, who was aware her male colleagues were downloading pornographic images but was not shown the images and did not complain at the time, had not been subjected to sexual harassment. However, the Employment Appeal Tribunal (EAT) overturned the ET’s decision and found that there had been sexual harassment because the conduct clearly undermined the claimant’s dignity.
Action employers could face
Workers who believe that they have been sexually harassed may raise internal complaints (grievances) about their treatment. This would usually necessitate an investigation followed by a formal meeting at which a decision would be made and the right of appeal offered. If the complaint was up-held it could result in disciplinary action against the harasser.
It is important to ensure an even-handed and sensitive approach to such complaints and that they are managed by trained impartial senior members of staff who understand the organisation’s policies and the potential implications of the internal complaint process.
Regardless these processes can be time-consuming and create difficult practical issues for small employers with limited resources. For example,
- if the complainant raises a serious harassment issue but states that s/he does not wish it to be addressed formally. Ordinarily if an issue is sufficiently serious it would be imprudent for the practice not to take steps to investigate notwithstanding the complainant’s position;
- consideration will have to be given to whether or not to suspend the worker accused of sexual harassment which could impact on the running of the practice;
- the issue will be sensitive and the confidentiality of those involved will require careful consideration. In small practices maintaining confidentiality is likely to be impossible thereby creating staff morale problems and resulting in limited resolution options; and
- the need to notify relevant regulatory bodies and when this should be done.
A worker who has been harassed can also raise proceedings in the ET, which is a public forum thereby creating reputational issues for a practice/practitioners.
ET litigation can be complex and protracted and it is usually necessary to take legal advice about how best to handle ET claims. Further, the compensation an ET can award, if a claim of sexual harassment succeeds, is uncapped and depending on the nature/impact of the harassment could be significant.
In successful claims, in addition to awarding compensation for loss flowing from the harassment (i.e. lost salary if the worker resigned as a result of the harassment), an ET will also make an injury to feeling award to compensate for the distress caused by the discrimination. The current average award for sex discrimination in the ET is £23,478 and injury to feeling awards span a range from £600 to £30,000 depending on the severity of the discrimination.
In a recent case the ET awarded a 22 year old zero-hours worker £19,500 injury to feelings in relation to an eight month period of sexual harassment by the worker’s manager, which involved asking her about her sex life and on occasion touching her, kissing her neck and simulating sexual intercourse with her. Despite complaining to another manager, nothing was done and when subsequently a formal complaint was raised the actions of the employer in investigating the complaint were cursory and no action was taken against the harassing manager.
Liability for harassment
Employers are vicariously liable for the actions of their staff in the course of employment whether or not the employer knew about/approved of the conduct. Conduct carried out in the course of employment would be likely to include not only acts committed in work premises during working hours but also at staff events (whether or not organised by the employer) such as parties and after work drinks, as well as work-related social media postings.
Employers can defend sexual harassment claims by demonstrating that they have taken reasonable steps to prevent discrimination. Examples of steps employers seek to rely on the reasonable steps defence are:
- implementing relevant policies and procedures (i.e. a Bullying and Harassment Policy);
- issuing the procedures to all staff;
- training staff responsible for managing the policy on its application and on equality and diversity matters more generally; and
- taking appropriate action in response to allegations of discrimination.
Practical steps to reduce risk
Allegations of sexual harassment can be complex and require sensitive management to avoid an adverse effect on the operation of a practice and a detrimental impact on staff morale, as well as reducing the risk of ET litigation.
Practices should therefore consider the tips below as a means of assessing and reducing the risk of harassment arising and to equip them to manage harassment issues robustly, including utilising the reasonable steps defence:
- introduce/review policies on equality/harassment, which set out in clear terms what constitutes acceptable/unacceptable behaviour and the consequences of acting in breach of the policies;
- ensure that the practice balances a friendly and open working environment with appropriate professional standards. Regular staff feedback sessions/surveys could provide a means of identifying inappropriate conduct allowing it to be nipped in the bud;
- ensure policies on equality/harassment are regularly reviewed and are highlighted to all new staff at the induction stage;
- train managers responsible for handling allegations of harassment on the practice’s relevant policies and provide refresher training from time to time;
- ensure staff understand that they should raise concerns about harassment (discrimination) and that the practice has a zero tolerance policy; and
- take legal advice at an early stage to ensure that matters are handled appropriately from the start and a lack of action/the wrong action does not create intractable issues.