What Constitutes Sexual Harassment in the Workplace?

All your employees should feel protected at work. To ensure their safety, you should do all you reasonably can to prevent unwanted conduct between staff from occurring. This includes sexual harassment of any kind.

It's possible that one of your employees could experience sexual harassment at work at some point. If you fail to prevent it occuring, or discipline the perpetrator accordingly, your business could face serious implications. For example, staff could raise an employment tribunal claim against you.

In this guide, we'll discuss sexual harassment in the workplace, the different types of unwanted sexual behaviour, and managing harassment claims.

What defines sexual harassment in the workplace?

Sexual harassment in the workplace is unwanted conduct - specifically of a sexual nature - that occurs in a work environment. This type of inappropriate behaviour will often make victims feel uncomfortable, violated, and unsafe whilst at work.

Sexual harassment doesn't have to be directed at an individual to be classed as such. For example, it can occur when an individual expresses inappropriate sexual behaviour or comments generally in front of a group of people.

What are examples of sexual harassment in the workplace?

There are several examples of sexual harassment in the workplace that you should be aware of. The most severe example is sexual assault. This specifically relates to inappropriate touching and groping in a way that violates an individual's dignity.

Ensure you inform yourself of all examples so you can recognise sexual harassment when it happens. These include:

• Sexual advances. For example, uninvited back massages or explicit sexual messages.
• Sexual favours. For example, a line manager seeking sexual favours in exchange for an employee's promotion.
• Sexual comments or sexually offensive jokes. For example, verbal comments about an employee's sex life.

As the law makes clear, sexual harassment can take many forms. It might occur as a one-off incident. But in some instances, it can be frequently degrading, humiliating or offensive behaviour.

Who is liable for sexual harassment in the workplace?

Any person who commits sexual harassment in the workplace is liable. But under The Equality Act 2010, you're legally responsible for protecting the health, safety, and wellbeing of your employees.

Meaning, by law, employers must do everything they reasonably can to prevent sexual harassment at work. If businesses fail to care for employees experiencing sexual harassment, they could risk facing a sexual harassment claim at an employment tribunal.

Is sexual harassment a criminal offence?

Under UK law, only certain types of sexual harassment are considered to be a criminal offence. Along with any form of sexual assault, this might also include:

• Stalking.
• Indecent exposure.

Can sexual harassment occur outside of the workplace?

Yes, sexual harassment can occur outside of the workplace. For example, this could be a manager inappropriately messaging a junior employee on social media, or unwanted touching of a staff member at social events.

It might not always happen on your business premises, but that doesn't mean you shouldn't take claims of sexual harassment outside of work seriously. Ensure you investigate each allegation of alleged harassment carefully on a case-by-case basis.

Does harassment have to be linked to protected characteristics?

The Equality Act 2010 refers to harassment as 'unwanted conduct related to a relevant protected characteristic'. But sexual harassment doesn't have to be linked to a person's protected characteristics for the law to class it as such.

For example, an employee who has been sexually harassed at work wouldn't need to prove it was because of their sex, race, or sexual orientation. Sexual harassment is different to harassment related to a protected characteristic. An individual at work could even experience both types at the same time.

If an employee has a protected characteristic, and experiences sexual harassment because of this, it can be considered unlawful discrimination. This is also the case if the individual experiences unfair treatment and discriminatory behaviour because of their characteristic.

What are the negative effects of sexual harassment in the workplace?

If sexual harassment occurs in your workplace, it’s likely to negatively affect your business. Not only will your employee have experienced a serious violation of their dignity, but it could affect staff morale as a whole. Let's explore these effects in more detail:

Poor staff wellbeing

One negative impact of sexual harassment in the workplace is a decrease in staff wellbeing. Wellbeing refers to how a person is doing overall. For example, a person with a healthy wellbeing typically has a positive mentality and outlook - so a poor wellbeing is the opposite.

This will likely be the case with staff who have experienced sexual harassment at work. Especially if you fail to take appropriate disciplinary action.

Consequently, they might become withdrawn because they have to work with the perpetrator, or fail to attend the workplace so they can avoid them. This can have a negative impact on their wellbeing as a whole.

High staff turnover

Another consequence of sexual harassment at work is high staff turnover. If employees frequently experience sexual harassment at your workplace, they'll look for a role elsewhere where their care is a priority.

Not to mention, if other staff bear witness to inappropriate behaviour being brushed under the carpet, they might lose respect for you as their employer. Which might negatively impact your workplace culture.

This could also result in decreased motivation and productivity at your workplace. Which may threaten your business as a whole.

Reputational damage

Sexual harassment at work could likely result in damage to your business's reputation. If sexual harassment goes unnoticed (and without disciplinary action) it could create a culture that tolerates this behaviour.

For example, ex-employees may inform other individuals about your business practices. As a result, your company could become notorious for allowing inappropriate conduct to continue. This could not only limit your applicant pool, but also damage your relationships with investors, clients and customers.

How to prevent sexual harassment in the workplace

Sexual harassment at work could happen despite your best intentions, but there are reasonable steps you can take to reduce the chance of it occurring. Ways to prevent harassment at work include:

Create a sexual harassment policy

The first step employers should take is writing a sexual harassment policy. This can either be added to your conduct and behaviour policy, or stand as its own one.

The policy should highlight what counts as inappropriate behaviour, like verbal comments, sexual jokes, and physical gestures. Moreover, it should state that this behaviour constitutes gross misconduct.

Employers should include the legal definition for sexual harassment - emphasising on 'creating an intimidating, hostile, degrading, humiliating or offensive environment'.

Offer equality training

One way to try and prevent sexual harassment at work is to offer equality training to your staff. Training will help managers and senior staff with raising awareness, identifying incidents, and disciplining employees.

It's also worth providing further resources - such as directing employees to the Equality and Human Rights Commission website. Here they can find more information about what sexual harassment looks like, so they can spot it when it happens.

Managers will be able to lead by example and their teams will follow in their footsteps. Consequently, employees will likely feel safer at work because of the protection from yourself and their colleagues.

Have regular catch ups with employees

Another way you can try and prevent sexual harassment at work is by checking in with staff regularly. This will help create a rapport between you and your employees, where they feel comfortable opening up to you.

These chats should happen in a private room away from other staff, to give employees the safety of complete confidentiality. Ultimately, it will encourage them to raise issues they have at work, such as if they are being sexually harassed.

Moreover, it gives you a chance to show employees you care about their wellbeing. And that they have a safe space to bring problems, such as sexual harassment, to you.

How to handle sexual harassment in the workplace

If sexual harassment occurs in your workplace, you must take the appropriate steps to ensure it is dealt with lawfully. And that you provide the utmost support and care to any victim(s).

Take action immediately

If an employee makes a sexual harassment allegation, ensure you take action immediately. This means making a record of people involved, investigating any other claims, and outlining a full account of the incident from as many witnesses as possible.

It also means gathering evidence quickly, in case you need to start your disciplinary procedure swiftly. Make sure you take disciplinary action lawfully, otherwise your employee could submit a constructive dismissal claim to a tribunal. But this is only if they quit your company because of the level of harassment.

Treat every allegation seriously

Employers must treat every sexual harassment complaint on an individual basis. No matter the size of the claim - sexual harassment should always be taken seriously.

It's also best to get external support especially if you're dealing with physical abuse or sexual assault. For more serious cases, employers may need to inform the police.

Support employee wellbeing

Remember, if sexual harassment occurs at your workplace, the person making the formal complaint should be supported throughout the process. If you have an EAP, encourage them to contact that for confidential support.

Make sure you provide resources to sexual assault charities and helplines, where they can get further help and advice. You should also ensure you are available to your employee during work hours - should they ever need to express their feelings about the situation.

Get expert advice on sexual harassment at work from Peninsula

You must do everything you reasonably can to prevent sexual harassment in the workplace. This means providing equality training, creating a sexual harassment policy, and having check-ins with your employees.

Moreover, you must manage any sexual harassment claims at work with the severity they require. This includes taking action immediately and supporting the wellbeing of any victims.

Failure to do so could result in sex discrimination claims to an employment tribunal. As a result, you could face expensive legal costs, as well as damage to your business's reputation.

Seek professional advice from Peninsula on workplace sexual harassment. Our teams offer 24/7 HR advice which is available 365 days a year. We take care of everything when you work with our HR experts.

We also have a free sexual harassment download policy for you to download and use in your business.

Want to find out more? Contact us today on 0800 028 2420.