This is a form of harassment which is classed as discrimination under the Equality Act 2010.
Sexual harassment occurs where both:
- A engages in unwanted conduct of a sexual nature
- The conduct has the purpose or effect of either violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B
It is important to note that a person can be sexually harassed by someone of the same or another sex.
For sexual harassment to have occurred, there must be unwanted conduct.
There does not need to be an express objection to the conduct and just because there is banter/joining in from both parties, it does not prevent it amounting to unwanted conduct.
Likewise, conduct can change from wanted to unwanted, such as where a party are in a relationship but upon that relationship ending the conduct becomes unwanted.
Specific to sexual harassment (as opposed to harassment based upon sex or any other protected characteristic), the conduct must be of a sexual nature. The Equality and Human Rights Commission set out some guidance that covers a wide range of behaviour as follows:
- Sexual comments or jokes
- Displaying sexually graphic pictures, posters or photos
- Suggestive looks, staring or leering
- Propositions and sexual advances
- Making promises in return for sexual favours
- Sexual gestures
- Intrusive questions about a person’s private or sex life, or a person discussing their own sex life
- Sexual posts or contact on social media
- Spreading sexual rumours about a person
- Sending sexually explicit emails or text messages
Purpose or effect
As with ‘ordinary’ harassment, sexual harassment can occur where the ‘effect’ of the conduct violates dignity or creates a humiliating, offensive, intimidating, hostile or degrading environment, not just if the intention (purpose) is present.
Employers can be held vicariously liable for the actions of their employees when sexually harassing others, leading to difficult claims that can be costly, high profile and bad for morale and reputation.
Employers are well advised to have robust procedures and policies for dealing with incidents, operating a zero-tolerance culture, encouraging employees to speak up about incidents and appropriate training for staff.
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