There are three types of sexual harassment at work:

• unwanted conduct of a sexual nature. Where someone’s dignity has been violated or where an intimidating, hostile, degrading, humiliating or offensive environment has been created.  Inappropriate touching, persistent requests for dates and sexual innuendos are examples;
• sex-related harassment. Where there is unwanted conduct related to the person’s gender.  Apart from the obvious examples this can also include hostile comments about childcare arrangements when a female employee has to leave work early to care for her young children;
• being treated less favourably after rejecting sexual advances or after submitting to them.

Employers must be aware that they can be “vicariously liable” for the actions of their employees.  If an employee harasses another, the employer can be held responsible.  In terms of a claim being made, the law states the conduct must be in the course of employment.  However, be aware this can be extended to also include social events outside of work.  In terms of deciding whether the conduct does fall into one of the three types listed above, there are a couple of key elements that would be taken into consideration:

• the conduct has to be “unwanted”. However, if the harassed employee is very junior, there is the risk that although they may have joined in with events and therefore the actions appeared not to be “unwanted”, the employee could argue that they felt they had to join in or risk losing their job;
• was it reasonable for the conduct to have the alleged effect? The test here is would a reasonable person have been offended?  If not, and the employee is judged to have been oversensitive, then it will not be sexual harassment.

To protect themselves against claims, employers must show that they took all reasonable steps to prevent harassment.  Key elements here would include the following:

• have a well-drafted HR anti-harassment policy;
• inform all employees of the policy, ensure they understand it and that they are aware of what they need to do if they believe they are being harassed on any grounds;
• undertake equal opportunity training with all managers;
• discipline any employee guilty of harassment.

So what should an employer do where an employee comes to them and alleges harassment, even if the employee says that they do not want to take it any further?  In all cases the employer should investigate making it clear to the employee that any such allegation is very serious.  Even if after investigation the employer does not find in favour of the employee, the employee still has the option to bring an employment tribunal claim.  The tribunal will consider all of the evidence when reaching its decision, therefore employers must ensure all investigations are thorough and fair, and have the supporting evidence to justify the decisions taken.

If you would like to know more or discuss how we can help you, please contact our HR consultants at info@connectivebusiness.co.uk