Sexual harassment at work

Sexual harassment is now no longer considered to be something that you should tolerate or shrug off, but something that you can and should talk about – at least, that’s the theory. 

However, the fact is that sexual harassment in the workplace remains commonplace. Particularly shocking sexual abuse cases involving powerful individuals like Harrods’ owner Mohamed Al Fayad continue to come to light after years of being hushed up. They remind us that this kind of abuse hasn’t gone away and that the victims aren’t getting the justice they’re entitled to.

What can and should you do if you’ve been sexually abused at work? This short guide is to help you consider whether you have been sexually harassed, and if so, what to do about it. We also look briefly at the difference between sexual harassment and sexual assault, given that the two are often confused.

See our main guide on discrimination at work to understand better where sexual harassment fits into current discrimination legislation.

What is sexual harassment?

Under the Equality Act 2010, sexual harassment is defined as any unwanted conduct of a sexual nature (or related to your gender) that violates your dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment.

Anyone can be the target and/or victim of sexual harassment, regardless of their gender or sexual orientation.

It’s also important to understand that sexual harassment in the workplace isn’t just an employment law issue. Sometimes more serious cases of unwanted sexual advances cross over the threshold from being sexual harassment into sexual assault, which is regarded in the UK as a criminal act. See more about this below.

 

Examples of sexual harassment

Sexual harassment includes but is not limited to:

• Unwanted but non-violent physical contact such as touching or patting.
• Sexual comments or jokes such as inappropriate sexual remarks, comments on someone’s body, or sexually suggestive jokes.
• Non-verbal gestures for example, leering, winking, or making lewd gestures that create an uncomfortable environment.
• Digital harassment : like sending sexually explicit messages, photos, or videos through email or messaging platforms.
• Stalking or persistent unwanted attention including someone constantly commenting on another person’s appearance or asking for dates, even after being turned down. (This may also fall under the Protection from Harassment Act 1997, making it both workplace harassment and a criminal offence.)
• Sexual advances such as repeatedly asking for sexual favours in exchange for workplace benefits or avoiding negative consequences.

In all these cases, the conduct is unwanted, and of a sexual nature, but there is minimal or no physical contact. The behaviour is assessed primarily by whether it creates an intimidating, hostile, or offensive environment.

 

 

What are your legal rights relating to sexual harassment?

You are protected by law against sexual harassment at work, but some people aren’t aware of that, or of the extent to which they are protected. Your main legal rights include:

• Day 1 protection: The Equality Act 2010 protects you against sexual harassment from the first day of your employment.
• Protected disclosure: If you report sexual harassment, it is considered a ‘protected act’ and your employer cannot lawfully dismiss you or treat you unfairly for reporting it.
• Victimisation: Any negative treatment you face after reporting harassment, can be challenged under the law as victimisation.

What’s the difference between sexual harassment and sexual assault?

Both sexual harassment and sexual assault involve unwanted conduct of a sexual nature. However, while sexual harassment can involve words and/or actions that don’t necessarily include physical contact, sexual assault usually involves physical contact. Both are unacceptable behaviours and can give rise to legal claims.

Some actions – such as ‘unwanted touching’ can be both sexual harassment and sexual assault – it all depends on the circumstances and severity of the behaviour. So for example, if the unwanted touching is relatively minor, such as someone placing their hand on your shoulder or lower back, it may be considered sexual harassment if it contributes to an intimidating or uncomfortable workplace environment.  However, if the touching is more direct and invasive, for example if someone intentionally groped a part of your body, this would cross the line into sexual assault because of the severe physical violation. The focus here is on the effect the behaviour has on the victim.

A specialist employment lawyer can help you claim for a sexual harassment case against your employer under the Equality Act 2010. However, sexual assault is classified as a criminal offence under the Sexual Offences Act 2003 and would be an issue for the police to deal with.

 

Examples of sexual assault

Sexual assault involves serious unwanted and intentional physical contact of a sexual nature. Examples include:

• Groping, such as unwanted grabbing or touching of body parts like breasts, buttocks, or genitals.
• Forcing a kiss without consent.
• Sexual acts without consent.
• Touching inappropriately, such as deliberately feeling or pushing against someone’s body in a sexual manner.
• Indecent exposure and ‘upskirting’ (taking a photo under someone’s clothing without their permission). These acts are also criminal offences under the Voyeurism (Offences) Act 2019, although upskirting is treated primarily as a form of sexual assault under criminal law, given its invasive nature.

What steps should you take if you’ve been sexually harassed?

If you have experienced or are facing sexual harassment at work, the steps you take will depend on the situation. However, at the very least we recommend that you should:

• Collect evidence: Make detailed written records of what has occurred, including dates, times, and any witnesses. This can be crucial evidence later.
• Review your employer’s policies: Most companies have an equality and diversity policy or a grievance policy, which outlines how they deal with employee complaints, including harassment and sexual harassment.
• Report the harassment: Speak to your HR department or a senior manager in the first instance.
  If the behaviour is particularly serious, such as sexual assault, consider reporting it directly to the police, and seek independent professional or emotional support.
• Seek legal advice: If your employer doesn’t take action, or your concerns are being dismissed out of hand – for example, they have rejected your grievance –  or you think they are not handling your complaint properly, it may be time to consult a specialist employment solicitor, such as Monaco Solicitors, to explore your options further (and see below).

After sexual harassment, should you stay with your employer or leave?

Every situation is different, and your decision will depend on your personal circumstances. Most importantly, everyone has the right to make their own personal choice. But this choice is difficult when you do not fully understand what options you have.

First, you must decide what you want or can cope with generally in your place of work. For example, if you were to stay, could you work with the perpetrator again? Could they or you be moved elsewhere in the business? Would an apology from them suffice? Do you want to leave?

You may prefer to negotiate an exit package and settlement agreement and move on as quickly as possible for the sake of your well-being and mental health. Or you may want to hold your employer accountable by taking your case to an employment tribunal. See below.

Negotiating a sexual harassment settlement agreement

If you feel unable to stay in your role, negotiating a settlement agreement/exit package for the sexual harassment you’ve suffered could allow you to leave relatively quickly on agreed terms. That way allows you to focus on recovering from the trauma you’ve suffered and on looking for a new job.

Negotiating a settlement is usually done by means of without prejudice conversations and without prejudice letters with your employer. It is usually the preferred choice if finances make it difficult for your to pay for legal representation at an employment tribunal, and particularly if you can get legal representation on a no win no fee basis for a settlement negotiation.

A settlement agreement for sexual harassment would typically include:

• Payment for unpaid wages and/or contractual entitlements.
• Compensation for the harassment suffered, including personal injury.
• Signing a non-disclosure agreement (NDA). You may have some strong feelings against signing such an agreement, although it may be possible for you to agree to an NDA and still also be able to refer the matter to a regulator or law enforcement agency. Having said that, your employer will generally want to prevent you from discussing the circumstances leading to the termination of your employment. The terms of the settlement agreement are also confidential.

 

Making an employment tribunal claim for sexual harassment

You may have no choice but to take your claim to an employment tribunal, if for example your employer will not engage in settlement negotiations, or because you have concluded that your employer should answer the allegations publicly.

The tribunal system has very strict time limits and any tribunal claim has to be initiated within three months of the harassment. Tribunals also expect you, in most cases, to have followed some form of formal process – e.g. instituting a grievance and allowing your employer to investigate.

Taking legal action in an employment tribunal can be emotionally and financially challenging, and also take many months from start to finish. However, despite its drawbacks, it may still be the right path for you, providing you are aware that the journey will be difficult.

 

Next steps

If you have been or are being subjected to sexual harassment and would like further help and advice on what to do about it, do get in touch with Monaco Solicitors.

We are specialist employment lawyers representing employees only and have a lot of experience of successfully dealing with sexual harassment cases in the workplace. All such cases are dealt with the utmost confidentiality, sensitivity, and professionalism.

Contact us:

• Via this link
• Phone: 020 7717 5259
• Email: communications@monacosolicitors.co.uk