What is sexual harassment?

Sexual harassment is defined under  s.26(2) of the Equality Act 2010  as follows:

(2 )A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b)

Under the law you have suffered sexual harassment if:

1. You have experienced conduct of a sexual nature; and
2. The conduct was unwanted; and
3. The conduct had the purpose or effect of violating your dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for you

What is conduct of a sexual nature?

What will amount to conduct of a sexual nature will depend on the circumstances of each incident of sexual harassment – sometimes it will be obvious, sometimes it won’t. It can include a wide variety of behaviours, including (but not limited to):

• Sexual comments or jokes;
• Displaying sexually graphic pictures, posters or photos;
• Suggestive looks, staring or leering;
• Propositions and sexual advances; and
• Making promises in return for sexual favours.

More examples of sexual harassment are included below under the heading  Examples of sexual harassment.

When is sexual conduct unwanted?

The word “unwanted” means the same essentially as “unwelcome” or “uninvited”. It does not mean that you have to expressly object to sexual conduct before it is seen as unwanted – the Employment Appeal Tribunal has ruled that harassers cannot “test the water” in order to see if their conduct was unwanted or not.

Unwanted conduct of a sexual nature can be verbal, non-verbal (such as written) or physical conduct of a sexual nature.

What if it was just a single incident of sexual harassment?

A single incident can be enough to constitute harassment – Employment Tribunals have experience with lots of these types of claims and regularly rule in the employee’s favour.

Can I still make a claim if I have remained silent and not raised a complaint?

Yes, you can still make a claim even if you have not raised a complaint about the sexual harassment. Employment Tribunals recognise that there can be a power imbalance at work as often the person harassing you is senior to you (for example, your line manager), and that it is not therefore uncommon for employees in these situations to be cautious of raising a complaint.

What is my employer argues that the sexual harassment was just ‘banter’?

If there has been conduct of a sexual nature in your workplace for a significant period of time (even years) it does not mean that such sexual conduct was wanted. This is even the case if you have engaged in ‘banter’ with colleagues as, for example, a coping strategy – the law recognises that if you’re being harassed it may be the case that you don’t want to ‘rock the boat’ by complaining.

Equally, the law recognises that there are ‘gradients’ of behaviour, and that while some sexual conduct might not be objectionable to you (for example, sexual innuendos) more serious behaviour of a sexual nature (such as a colleague trying to kiss you or being told that someone wants to have sex with you) may be, and therefore may constitute sexual harassment.

Case study – Smith v Renrod Limited

In this case the Employment Tribunal dismissed all of Ms Smith’s claims except for her claim for sexual harassment, which it upheld – this finding was made based on a text message that the Claimant submitted during the Employment Tribunal (but had not made available during the grievance process with her employer) that evidenced that her line manager had made a comment that he wanted to “[fuck her] on the desk” comment in 2014. The Employment Tribunal came to this conclusion despite a finding that the Claimant had participated in and even initiated sexual banter in the workplace, as it found that, given car dealership was a male-dominated industry, it would have been difficult for her not to feel compelled to participate in (and not obviously take offence at) language and conduct which was nevertheless demeaning and insulting.

Read our analysis of the case here

What if the sexual conduct happens outside of the workplace?

What is “in the course of employment” can sometimes be a grey area – if you’re sexually harassed whilst sitting at your desk in your workplace then it is pretty clear that this is in the course of employment. However, some examples are less clear-cut – what if you’re sexually harassed by a colleague on an evening out with work-mates, for instance? Each case very much depends on its particular facts and circumstances, and the Employment Tribunal will take into account:

• Whether the relevant act was done at, or outside, work; and, if outside
• Whether there was a sufficient connection with work to render it done in the course of employment

Employment Tribunal finds that harassment at leaving party was in course of employment

In Chief Constable of Lincolnshire Police v Stubbs [1999] ICR 547 alleged sexual harassment by a fellow police officer occurred when attending a pub immediately after work and at a leaving party for a colleague. The Employment Appeal Tribunal concluded that the Employment Tribunal was entitled to find that the sexual harassment was within the course of employment as: 1) both incidents occurred during social gatherings of police officers; and 2) on neither occasion was the claimant socialising with just the other officer.

Conduct had the purpose or effect of violating your dignity or creating an intimidating, hostile, degrading, humiliating or offensive  environment for you

The purpose or effect referred to in s.27(1)(b) is conduct which has the purpose or effect of violating your worker’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive  environment for you.

Conduct of “a sexual nature” covers a variety of different types of conduct, including verbal, non-verbal and/or physical contact, which occur in the course of employment. and you should seek expert employment law advice if you think you have been sexually harassed at work.

Did you know?

You may be able to make a claim to the Employment Tribunal for damages for injury to feelings, as well as compensation for any lost earnings, if you think that you have been sexually harassed in the workplace.

Other types of sexual harassment at work

In addition to the above, there ae two other types of sexual harassment claim that you can make:

1. Where you either reject a colleague’s sexual advances or accept them, but subsequently are less favourably treated by the person who has sexually harassed you; and
2. Sex-related harassment, where there is unwanted conduct which relates to your gender which offends you

Examples of sexual harassment at work

Below is a (non-exhaustive) list of examples of harassment

• One of your co-workers puts up a pornographic calendar in the office and this upsets you;
• One of your co-workers touches your knee and makes unwanted comments which are sexually suggestive;
• One of your colleagues make sexual comments to you at a work social function;
• One of your colleagues sends you an email with an explicit picture of a sexual nature in it and this offends you;
• You overhear a joke of a sexual nature in the workplace and the nature of this joke upsets you;
• A colleague tries to kiss you at your employer’s Christmas party;
• A colleague suggestively looks at you, or stares or leers at you;
• Intrusive questions about your private or sex life, or a colleague discussing their own sex life in front of you;
• Sexual posts or contact on social media from a colleague;
• You receiving messages of sexual nature by text message, social media, or by other other electronic means (for example, by WhatsApp);
• A colleague subjecting you to sexual assault or raping you;
• A colleague touching you uninvited, or hugging or massaging you

Sexual harassment cases in the newspapers

• Banker labelled ‘crazy miss cokehead’ wins harassment claim ( The Telegraph )
• Female sales executives win big payout over sex pest boss who groped and ogled them ( The Evening Standard )
• Top surgeon sacked after allegedly harassing two female trainee doctors, tribunal hears ( The Telegraph )

Action you can take if you’re being sexually harassed at work

If you think that you are being subjected to a detriment because you have done, will do, or are considering doing a protected act then you should take action as soon as possible. Below are some examples of what you can do:

1. Ask the harasser to stop
2. Try and deal with the problem internally;
3. Submit a formal written grievance complaining about the victimisation;
4. Gather evidence relating to your claim for victimisation;
5. Request a copy of your employer’s sexual harassment policy;
6. Dealing with the grievance procedure;
7. Appeal the grievance outcome, where appropriate;
8. Go through the ACAS Early Conciliation process; and
9. Talk to specialist employment solicitors – ideally, consult sexual harassment lawyers who specialise in this area of law

Ask the harasser to stop

If you are able to tell the person who is harassing you to stop then do so.

Try and deal with the problem internally

The best thing to do initially, if appropriate, is to submit an ‘informal’ complaint detailing what you have experienced, when it happened, and who was involved.

You should submit the informal complaint in writing to your line manager (unless it was your line manager who harassed you, in which case find a suitable alternative manager to complain to).

If the informal complaint does not resolve your situation then you should look at filing a formal written grievance.

Submit a formal written grievance complaining about the sexual harassment

Check your organisation’s grievance policy to check how you should submit your grievance. Generally, however, you should follow this approach:

1. Submit your complaint in writing (preferably by email) to your line manager or Human Resources;
2. Outline in the complaint the factual background of what has happened to you, when the victimisation occurred, who was involved, who witnessed the victimisation, and where it happened;
3. Provide to your employer any evidence that you have which supports your complaint (this could be documentary evidence (such as, for examples, emails or messages) or witness statements

Gather evidence relating to your claim for sexual harassment

Collect evidence of the sexual harassment that you have experienced – this will normally include:

• Keeping a diary of the incidents of sexual harassment that you have suffered, including detailing what happened, who was involved, who witnessed the harassment, and when it happened;
• Take witness statements from any colleagues that witnessed the harassment (for example, ask them to send you an email detailing what they witnessed); and
• Collect and keep any documentary evidence relevant to the harassment (such as letters, emails, text messages, WhatsApp messages, notes, minutes of meetings etc.)

You can also look at submitting a subject access request to your employer to try and force the to provide you with your personal data – this can be useful as it should force your employer to send you material that it has not provided to you before.

Dealing with the grievance procedure

It is normally recommended that you take reasonably practicable steps to comply with your employer’s grievance process if you submit a formal written grievance, otherwise it could prevent a successful outcome to the grievance process and/or mean that you are in breach of the ACAS Code on Disciplinaries and Grievances (this, in turn, could potentially lead to a reduction in compensation that you receive if you bring a claim for sexual harassment).

Your employer must, however, be reasonable in its approach to the grievance process – if your employer acts unreasonably then it may be in breach of the ACAS Code (and this might, conversely, increase the value of your potential Employment Tribunal claim). A further point is that if your employer unreasonably fails to comply with the grievance process then it might allow you to argue that you are being victimised by your employer (which could be a further claim that you could bring).

Should I appeal the outcome of my grievance if I’m unhappy with it?

You should normally appeal the outcome of your grievance (for the reasons detailed above) if you’re unhappy with it – this is the case even if you intend to leave your job and/or if you view the outcome of the appeal process as a ‘foregone conclusion’.

Go through the ACAS Early Conciliation process

Before you bring a claim in the Employment Tribunal you will normally need to go through the ‘ACAS Early Conciliation process’ and obtain an ACAS Early Conciliation certificate.  Please click here for a link to the ACAS website .

The deadline for submitting your claim in the Employment Tribunal will normally be extended by the period of time that you were in the ACAS Early Conciliation process for (this can be a complicated calculation, however, and we recommend that you seek legal advice on this).

If you do not obtain an ACAS Early Conciliation before issuing your claim in the Employment Tribunal then the Employment Tribunal will normally not accept your claim. This step is therefore very important.

Talk to a lawyer

If you’ve been sexually harassed at work then you should think about speaking to a lawyer that is experienced in dealing with such claims – you can either speak directly to a lawyer ( click here to contact us to discuss ) or make an appointment with the Citizens Advice Bureau to obtain initial advice.

Speak to one of our expert employment solicitors about your case

If you think that you’ve been subjected to sexual harassment in the workplace then call one of our expert employment law solicitors for a free consultation to discuss a potential Employment Tribunal claim today

Who is liable for sexual harassment at work

Under the Equality Act 2010 both the colleague who has sexually harassed you and the business that employed you may be liable in any Employment Tribunal claim.

Example

If you’ve been sexually harassed at work by a colleague of yours then both your colleague and the business that employs you may be liable for sexual harassment (unless your employer can successfully employ a defence to your harassment claim

What if I am the one that is accused of sexual harassment?

If you are being accused of sexual harassment at work then this usually amounts to an act of gross misconduct. You may wish to skip to our guide on gross misconduct in this circumstance.

What can a solicitor do about harassment?

A sexual harassment solicitor can advise you on your situation and your potential claims. They can also seek to try and obtain a settlement for you, and assist you with making a claim to the Employment Tribunal.

Is it easy to make a claim for sexual harassment in the Employment Tribunal?

It is never ‘easy’ to bring and win a claim in the Employment Tribunal (whether for sexual harassment or otherwise) – Employment Tribunal claims are time-consuming, stressful, and take a little while to conclude. However, you have a decent chance of succeeding with your claim for sexual harassment if:

1. you have reasonable prospects of success with your claim for sexual harassment (see  What is sexual harassment? );
2. you are willing to put in the effort to obtain the necessary evidence to support your claim; and
3. you are willing to put the time, effort, and money to obtain a result in the Employment Tribunal (whether this is to obtain a settlement or to bring an Employment Tribunal claim)

Did you know?

You must make normally an Employment Tribunal claim for sexual harassment within 3 months of the date of the last incident of harassment.

The tactics of bringing a claim or reaching a negotiated settlement

If you have been sexually harassed at work then how you react to this can be a difficult decision: you may be reluctant to make a complaint about the harassment for fear of ‘rocking the boat’ (particularly if the harasser is a senior colleague) and you may not wish to risk damaging your career. However, we find that clients often find it difficult to return to their job after they have been sexually harassed and, further, most of our clients who have experienced such conduct want justice – they want to hold the harasser to account for what they have done and to stop them from doing the same thing again to another woman in the workplace.

Aside from trying to resolve the problem internally (see Action you can take if you are being sexually harassed at work) you generally have two options:

1. Bring a claim in the Employment Tribunal; or
2. Try to negotiate a settlement

Bringing an Employment Tribunal claim

Bringing an Employment Tribunal is normally a ‘last resort’, given the uncertainty of success of a claim in the Employment Tribunal, the stress caused, the time that such a claim takes, and the potential cost of the claim (if you instruct lawyers to help you). Equally, the Employment Tribunal is a public forum.

An Employment Tribunal is always an option, and it is a useful option, but it is normally the best option if you cannot resolve matters internally with your employer and/or cannot reach a settlement with them.

Negotiating a settlement

We normally recommend trying to see if a negotiated settlement can be reached with your employer, and we recommend that you try this before resigning from your job (if you feel that you can no longer continue to work for your employer). You are always going to be in a stronger negotiating position if you negotiate before resigning.

If you are successful with negotiating a settlement with your employer then a  settlement agreement  would normally be agreed – under this settlement agreement your employment will normally terminate (although this is not always the case) and, in return for you agreeing to not pursue any claims against your employer, you would normally be provided with financial and non-financial benefits – this includes

• Financial benefits: payment of your notice pay; any outstanding salary and holiday; plus compensation for termination of employment (which can normally be paid tax-free to you up to a maximum of £30,000);
• Non-financial benefits: this normally includes (among other things) your employer providing you with an agreed reference, an agreed announcement, mutual confidentiality clauses, and allowing you to retain company property (such as, for example, your company laptop or mobile phone)

It is always a good idea to seek expert legal advice from a solicitor before taking any steps (whether this is negotiating a settlement or bringing an Employment Tribunal claim), as any mis-steps (such as, for example, resigning before trying to negotiate) could damage your prospects of reaching a settlement that you are happy with.

What compensation can you receive in a claim for sexual harassment?

If you are successful with a claim for sexual harassment in the Employment Tribunal then you can normally pursue the following kinds of compensation:

1. Any loss of earnings that you have suffered as a result of the sexual harassment that you have suffered (for example, if you’ve lost out on a bonus or you have had to resign because of the victimisation);
2. Any injury to feelings that you have suffered due to the harassment;
3. Any personal injury that you have suffered (for example, if you have suffered Post Traumatic Stress Disorder or depression because of the sexual harassment);
4. Aggravated damages (this is a rare award and is normally relevant if there has been particularly bad behaviour on your employer’s part)

Examples of successful sexual harassment claims

• X v Renrod Limited ET/1400166/15 – in this case the Employment Tribunal found that a female employee had been sexually harassed despite participating in sexual banter ( read our analysis of the case here )

Examples of compensation awarded in sexual harassment claims

• Miss S Joyce v Mr M England (ET1601693/2019)  – in this case the Employment Tribunal held that a female employee had been subjected to an extended campaign of sexual harassment and that she was unfairly dismissed after going on sick leave, awarding her over £14,000 in compensation (read our analysis of this case here)
• Jurkowlaniec v Aykut Gul (ET/4107131/2019)  – in this case the Employment Tribunal found that a waitress had been sexually harassed by her line manager, awarding her over £12,000 in compensation (read our analysis of the case here)
• Shotton v Mark Harris Upholstery Limited & anor (ET/1401354/2018)  – in this case the Employment Tribunal found that a female employee had been harassed over an extended period by the Managing Director of the company she was employed by, awarding her £25,000 in compensation (read our analysis of the case here)

How our sexual harassment lawyers have helped clients with sexual harassment claims

We have included below details of case studies where we have helped clients that have been sexually harassed in the workplace:

• Redmans helps client to settle her sexual harassment claim against her boss – Chris Hadrill, a specialist employment solicitor at Redmans, represented a client in settlement agreement negotiations, and secured an ex-gratia payment for the client ( see the case study here )

What happens if you’re victimized for making a Tribunal complaint of sexual harassment

If you do any of the acts listed below (known as a “protected act”) and are then subjected to any form of detriment or dismissal because you have done so then you may be able to make a claim for “ victimization ” under the Equality Act 2010.

A protected act can include:

• Making or threatening to make an informal or formal complaint about sexual harassment (or any other form of harassment or discrimination) within your organisation
• Helping a colleague to make a complaint or helping them with their Employment Tribunal claim regarding harassment or discrimination
• Making or threatening to make an Employment Tribunal claim for discrimination or harassment