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Author: Emily Kidd
With the increase in allegations of sexual harassment in Hollywood and Westminster, one of our employment solicitors, Emily Kidd, sets out a reminder about what constitutes sexual harassment in the workplace.
What is Sexual Harassment?
The Equality Act 2010 sets out the discrimination protection in England and Wales.
Sexual harassment is broadly defined as unwanted behaviour of a sexual nature or related to sex which has the purpose or effect of:
The Claimant does not need to have made it clear that the behaviour is unwanted. In the case Insitu Cleaning Co v Heads  IRLR 4, the court said would-be harassers cannot “test the water” to see how the conduct is received.
Was it intentional?
The test is whether it has the “purpose or effect” of violating dignity and creating the environment set out about. Therefore an act of unintentional harassment could amount to sexual harassment.
In deciding whether conduct has the effect referred to above, the tribunal must take into account the victim’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Therefore, provided any offence caused is unintentional there will be no harassment if the victim is being "hypersensitive".
A single incident can constitute harassment as in the case of Reed v Stedman  IRLR 299 (EAT).
Unwanted conduct of a sexual nature
The Equality Act gives guidance as to what sort of things might amount to unwanted conduct:
An employee may also succeed in a claim for sexual harassment when a consensual relationship ends and the other party's conduct becomes unwanted. In one case (A v Chief Constable of West Midlands Police UKEAT/0313/14), the Employment Appeals Tribunal decided that an employee had been sexually harassed for two days after an 18-month relationship with her work colleague ended.
In Moonsar v Fiveways Express Transport Ltd UKEAT/0476/04, the claimant had been aware on three occasions of male colleagues downloading pornographic images onto computer screens. Even though she had not been shown the images or made any complaint at the time, the Employment Appeals Tribunal found that there had been discrimination and found that the treatment undermined the claimant's dignity.
Is the victim protected?
Discrimination claims can be brought any time (including during the application process) and do not require a minimum length of service. They also apply to workers which covers a wider group than employees. Employers can be responsible for the actions of third parties too. It is sometimes a defence to say that an employer has done all it can to prevent discrimination at work.
Who will pay?
In many cases the claim will be brought against both the employer and the alleged perpetrator. If the employer can successfully argue it has done everything possible to ensure sexual harassment does not take place at work, they may not be responsible and it would be the perpetrator themselves that the award is made against. In one case, the employer had provided a one-day discrimination and employment rights training course and had anti-harassment and equal opportunities policies in place but the tribunal said that "simply referring to training and policies is not sufficient" and found that the employer had not taken steps to prevent the culture of sexual banter in the workplace and did not properly handle the complaints made.
How much is likely to be awarded?
In cases where the Claimant is dismissed or has no option but to resign, there are likely to be financial losses and these are assessed in a similar way to claims for Unfair or Constructive Unfair Dismissal. In all cases of discrimination, there will be a claim for “Injury to Feelings”. The leading case of Vento v Chief Constable of West Yorkshire Police, the Court of Appeal set guidelines for the amount of compensation to be given for injured feelings and set out three bands of potential awards: