#sexual harassment #itiswhatitis

The #MeToo hashtag has become globally renowned for all the wrong reasons over the past few years. It picked up momentum exposing the widespread prevalence of sexual discrimination in the workplace following the Harvey Weinstein scandal.

Since lifting the veil on what went on behind closed doors and what was often silences under cleverly drafted Non Disclosure Agreement’s, sexual harassment has been ‘outed’ in many sectors and arenas.

The latest to hit the headlines is the nations favourite summer indulgence ‘Love Island’. Like it, or loathe it, even Piers Morgan is talking about it, from merchandising to sponsorship, it’s the new ‘big brother’ with it being the daily office talking point.

Last week, one of the contestants, Maura was caught up in a furor with none other than Tommy Fury when he spurned her advance to try and kiss him.

Despite Tommy turning away and saying ‘no’, Maura proceeded to try and force herself upon him. This has once again raised the discussion of ‘no means no’ and why ITV failed to reprimand Maura when the same actions if it were a man, would have resulted in some form of disciplinary action; if not immediate expulsion from the villa.

Why is there one rule for men and another for women when it comes to sexual harassment? Are women always the victims? Although men become the victims of sexual harassment at the hands of women comparatively less frequently doesn’t mean these incidents should be ignored. Sexual harassment should be directly challenged and dealt with appropriately whether women or men are the victims.

What is sexual harassment?

The Equality Act 2010 defines sexual harassment as unwanted conduct related to sex (behaviour) which has the effect of violating dignity or creating a hostile, degrading, humiliating or offensive environment.

The second definition relates to unwanted conduct of a sexual nature which has the same purpose or effect as in the general definition. In addition to the overlap, conduct of a sexual nature also goes further in scope and covers:

  • verbal and non-verbal physical conduct
  • unwelcome sexual advances
  • touching
  • forms of sexual assault
  • jokes
  • display of pornographic photos or images
  • sending emails with content of a sexual nature.

Although the conduct may not have been carried with the ‘purpose’ of having that effect (for example a ‘joke’ email), if it has that ‘effect’ (someone is offended), it is deemed unlawful if it is ‘reasonable’ for the conduct to have had that effect.

No means no

The big question is whether the conduct was unwanted.

In the case of Reed and Bull Information Systems Ltd v Steadman [1999] IRLR 299, the Employment Appeal Tribunal said that “some conduct is obviously unwelcome unless invited”. With less obvious actions the question to ask is whether the person making the allegations has made it clear that they found the conduct unwelcome; this could be by saying something or their behavior.

What should you do as an employer?

As an employer, you should take appropriate action to deal with and address complaints whether they are made informally or formally via the grievance or bullying and harassment procedure.

Employee protection

Employees should be comfortable in the knowledge that there are policies and procedures that will protect them in the event of an incident and that these policies and procedures will be adhered to by their employer.

It should not be #itiswhatitsis

Although the saying has been made famous, the actions in Love Island are a reminder that any kind of unwanted, uninvited conduct of a sexual nature should not be tolerated, irrespective of the gender of the perpetrator or the victim. It really should not be accepted as #itiswhatisis.

For further advice on sexual harassment in the workplace please contact Kaajal Nathwani of the employment team on 020 8363 4444 or by email on Kaajal.nathwani@curwens.co.uk

This briefing is for guidance purposes only.

in Blog