Unrequited love

11 February 2008

Roses are red, violets are blue
If sexual harassment is on the cards
What should you do?

According to the British Retail Consortium, Briton’s are expected to spend £2.3 billion declaring their love this week as Valentine’s Day comes and goes for another year. The advances of an ardent admirer are however, not always welcome and unrequited love in the workplace is estimated to be costing employers in the UK an equivalent amount each year.

Approximately 13 million Valentines cards are sent every year, with 49% of men and 51% of women spending on their loved one. In comparison, research by the Institute of Employment Studies predicts that there will be 825,000 counts of sexual harassment in the UK, based on trends from previous years, with women being three times more likely to be a victim than a male. According to the Chartered Institute of Personnel and Development, instances of bullying and harassment in the workplace costs employers £2 billion in lost revenue and £80 million in lost working days, not to mention the cost of litigation.

Since 1 October 2005 employees have had a free standing right to bring a claim of sexual harassment under the Employment Equality (Sex Discrimination) Regulations 2005. Sexual harassment is defined as:

unwanted conduct of a sexual nature;
which has the purpose or effect of:

violating the recipient's dignity; or
creating an intimidating, hostile, degrading, humiliating or offensive environment.

It also includes less favourable treatment on the grounds of the recipient's "rejection of or submission to" such conduct.

Sexual harassment does not therefore need to be physical conduct, and can occur in verbal or non-verbal forms which are sexual in nature. A one off remark can be sufficiently serious to constitute harassment. In Insitu Cleaning Co v Heads (1995) a remark made to a woman about her breasts was held to be sexual harassment. Material in the workplace, such as magazines, posters or calendars displaying full or partial nudity, could give rise to allegations of sexual harassment, as can emails or text messages containing inappropriate words or images. In Moonsar v Fiveways Express Transport Ltd (2004) the EAT found that the employee’s dignity had been violated, when during her shift it became evident to her that male colleagues were downloading pornography on their computer, even though she had not been shown the images.

Claims can be brought against the individual employee, who as the perpetrator of the act can be held personally liable, and against the employer who can be held vicariously liable for the acts committed by employees during the course of their employment. This can include acts done at the workplace during breaks (paid or unpaid), and has been found to apply to social events, whether formal or informal, that occur outside working hours.

The employer does have a defence to a claim, where it can show that it took all reasonable steps to prevent the employee from performing the harassing acts. Guidance on what is required for an employer to be able to rely on the defence was provided by the EAT in Canniffe v East Riding of Yorkshire Council (2000) where a disabled women was subjected to a series of sexual assaults by a male work colleague. The EAT ruled that the correct approach was to first ‘identify whether the respondent took any steps at all to prevent the employee from doing the act complained of in the course of his employment’, and secondly, ‘having identified what steps, if any, they took to consider whether there were any further acts that they could have taken that were reasonably practicable’.

An essential element to proving all reasonable steps were taken is to demonstrate that there is an up-to-date equal opportunities/anti-harassment policy in operation. It will not however be sufficient to simply produce one in paper; employers will also need to demonstrate that this has been properly communicated to all employees and that training has been given to ensure that everyone in the organisation is aware of what behaviour is, or is not, acceptable. Employers should also ensure that Internet and Email policies prohibit the accessing and distribution of sexually explicit material.

Employers must have adequate procedures in place encouraging employees to raise complaints of this nature and to have these promptly investigated in a fair and sensitive manner. Where complaints are upheld the employer should take appropriate action. As harassment should constitute an offence under the disciplinary policy, formal disciplinary action, up to and including dismissal depending on the severity and individual circumstances, is the most likely outcome. In addition to, or as an alternative to disciplinary action, employers should also consider other remedial measures such as training.

Did you know that a person will spend an average of £92.50 on gifts for Valentine’s Day, whereas the compensation awarded last year in sex discrimination cases, including harassment, was an average of £10,052 and over 28,000 claims were lodged. A reminder for all staff this week that although flattery may get you nowhere, it could also put you in the dock!