An employer has had to pay compensation in excess of £50,000 to a former employee who was sexually harassed by her Manager and some colleagues who thought their behaviour was normal “workplace banter”.
Background
Shortly after commencing employment with a well-known retail chain, the employee was subjected to unwanted advances and inappropriate comments by a fellow employee. The employee complained to her Manager, who told her to “take it as a compliment” and “was not surprised” by what had happened.
The harassment continued. The employee’s allegations included being touched on her bottom, thighs and waist by the Deputy Manager who also attempted to hug her, slap her bottom, and made sexualised comments to her about her sex life, underwear and appearance.
The employee resigned and issued a number of claims including sexual harassment.
Decision
The tribunal held:
- The employee had been sexually harassed.
- The behaviour reflected the culture of the workplace.
- Workplace ‘banter’ was commonplace and used by some Managers to “lighten the atmosphere.”
- Managers took part in discussions which ranked female members of staff by their perceived attractiveness; and failed to appear to understand that their comments were offensive.
- One Manager trotted out the excuse that he did not intend to cause offence which is irrelevant, because it is the effect on the complainant that matters.
The employer could have avoided liability if it had taken all reasonable steps to prevent the harassment, but it did not come close to establishing this because:
- Senior Managers did not step in to prevent harassment.
- The Employer failed to train managers on its anti-harassment policy or to explain their duty to create a workplace free of harassment.
- The Employer failed to deal with complaints in line with its procedure.
The employee was awarded £50,884.62 which included £22,000 for injury to her feelings, which was at the higher end of the middle Vento band (that applied at the time) and reflected the prolonged period to which she was subject to sexual harassment.
Points to Note
Sexual harassment at work continues to be widespread; despite legal protections being in place to protect employees from being sexually harassed at work and employers having policies which spell out the standards of behaviour expected.
A TUC survey revealed that 3 in 5 women have been sexually harassed at work, rising to 2 in 3 women in the 25-34 age bracket. Not all incidents are reported to their employer: this may be due to fear of repercussions; lack of awareness regarding their rights; and fear of not being taken seriously.
The Worker Protection (Amendment of Equality Act 2010) Act
The Worker Protection (Amendment of Equality Act 2010) Act require employers to take reasonable steps to prevent sexual harassment in their workplaces. If they fail to do so, a tribunal can award a claimant additional compensation of up to 25% of their compensatory award.
The Act comes into force in the Autumn of 2024 and employers should start preparing now.
Employers should consider:
Evaluating the Culture in your Organisation
Identify the extent to which there may be a problem within your workplace. This could be done by asking staff about their experiences via confidential surveys. Ask all employees if they have been sexually harassed (or harassed due to another protected characteristic, such as their race, nationality, disability, sexual orientation, age, etc.); and ask them to confirm if this was by a work colleague or a third party; and it would be helpful to ascertain if they reported the incident/s, and if not, the reasons why not.
Train your Staff
Once you have this information, you will need to focus on your own employees/workers and critically evaluate the training required and who receives it.
All employees/workers should undertake regular equality and diversity training which should also include sexual harassment.
The Training Should Cover in Detail:
What sexual harassment is;
A person (A) harasses another (B) if:
(a) A engages in unwanted conduct related to a relevant protected characteristic, and
(b) The conduct has the purpose or effect of –
(i) Violating B’s dignity, or
(ii) Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
Definition of Harassment: Equality Act 2010
That Inappropriate Conduct Could Include:
- Verbal and non-verbal communications.
- Unwanted conduct affecting the dignity of workers in the workplace.
- Spreading rumours maliciously, insulting someone.
- Ridiculing or demeaning someone, making derogatory remarks.
- Exclusion or victimisation.
- Unfair treatment.
- Unwelcome sexual advances – compromising invitations, unwanted physical contact or touching, standing too close, display of offensive materials, offensive flirtations, innuendoes or lewd comments or gestures, sexual assault.
- Unwelcome comments including name calling or use of stereotypical expressions.
- Deliberately undermining a worker by constant criticism.
- Preventing individuals progressing by deliberately blocking promotion or training opportunities.
- Standards of behaviour when interacting with colleagues via social media (irrespective of whether work related) and when they socialise with colleagues.
- Types of banter in the workplace and what is/is not acceptable.
Train your Managers
Managers need additional training to reinforce this message and step in when necessary. Managers need to recognise when a normal light-hearted conversation oversteps the mark, intervene to diffuse the situation, and demonstrate good practice by how they speak and behave towards others. You should not assume that this is a skill set all managers have and they may require support and training to help them to develop these skills.
Make it Easy to Report Incidents
Your policies should clearly explain how employees can make complaints.
Deal with Complaints Appropriately
All employees should be treated with respect and may need on-going support during the process. You should set out a timeframe for the investigation and keep the complainant aware of the steps you are going to take and the outcome you reach. Anyone who is guilty of bullying or harassing a colleague should be disciplined. Anyone who makes a complaint should be able to work normally.
Update your Policies
Make sure that you have appropriate policies in place and reflect your approach. Review these regularly to ensure that they remain fit for purpose.
