Sexual harassment is, regrettably, still common in many workplaces.

Victims of sexual harassment often find themselves unable to continue working for their employer. Sometimes individuals are fired because they have rejected the advances of a manager at work. Sometimes people feel it is impossible to continue turning up to work where they are facing demeaning or harassing treatment from a colleague.

Whether you have been subjected to inappropriate comments, or sexual assaults from a colleague, a claim of sexual harassment under the Equality Act 2010 may be possible.

What counts as sexual harassment?

There are two common types of sexual harassment under the Equality Act 2010.

The first type is “unwanted conduct of a sexual nature” that violates the victim’s dignity, or has the purpose or effect of creating  an "intimidating, hostile, degrading, humiliating or offensive environment".

So, a tribunal will ask:

• Was the conduct unwanted, or consensual?
• Was the conduct of a sexual nature?
• Did it violate the victim’s dignity, or create an intimidating, hostile, degrading, humiliating or offensive environment?

“Unwanted conduct of a sexual nature” could be anything from repeated requests to go on a date, to sexual assaults.

The second type of sexual harassment is where the victim’s rejection or submission to unwanted conduct of a sexual nature (or unwanted conduct related to gender reassignment or sex), leads a victim to being treated less favourably than they would have been if they hadn’t rejected or submitted to the conduct.

Mary’s manager Michael repeatedly asks her to come back to his hotel room at the Christmas party. He tells her that being close to him would help her career. She rejects him. Mary is rejected for promotion and someone less qualified than her is promoted by Michael.

Mary has been subjected to unwanted conduct related to sex (the requests to come back to Michael’s hotel room). Those requests may well have created an intimidating environment, or violated her dignity. Because of her rejection of Michael, she wasn’t promoted.

• Conduct of a sexual nature may include verbal, non-verbal, physical or other conduct including sexual advances, touching, sexual jokes, pornographic photographs or sending emails of a sexual nature (ECHR Code of Practice on Employment (2011)).
• If a single act is serious enough, considering the impact on the individual concerned, it may constitute sexual harassment. Equally, many different otherwise trivial acts may together, if numerous enough, become serious enough to constitute harassment (see Reed and Bull Information Systems v Stedman [1999] IRLR 299).

When deciding whether the conduct has the effect of violating someone’s dignity or creating an “intimidating, hostile, degrading, humiliating or offensive environment”, the following factors will be taken into account:

• The victim’s perception.
• The other circumstances.
• Whether it is reasonable for the conduct to have that effect.

Will my employer have a defence if I sue for sexual harassment?

An employer might respond to a claim for sexual harassment in a number of different ways. They might deny that the events happened in the way described. They might say the actions happened, but the sexual conduct was consensual, and was therefore not “unwanted”.

An employer might say that they took “all reasonable steps” to prevent the discrimination. That is only a defence if they can show that before the harassment took place, they did things that might prevent it.

Who should I sue?

It is often a good idea in a sexual harassment claim to bring employment proceedings against your employer and the individual in question who is alleged to have harassed you. That way, even if the employer shows that they took “all reasonable steps” to prevent the harassment, the individual will still be liable to compensate you for your losses.

What damages am I likely to be awarded?

If you are successful in your claim, the employment tribunal will award you compensation for any losses that you have suffered because of the sexual harassment. In addition, you are likely to receive an injury to feelings award. The worse and more sustained any campaign of harassment against you is, the higher the award that you will be given.

You may also be entitled to receive damages for personal injury if you have developed or had worsened any mental health conditions (often depression or anxiety) from the conduct at work. Damages relating to treatment and loss of ability to work are common.

In the example above, where Mary is not given a promotion because she rejects her manager’s advances, she would be able to claim the difference between the salary she would have got if she was promoted, and the salary she actually received. In addition, she would receive an injury to feelings award.

Sex discrimination

Direct sex discrimination

Direct discrimination takes place when, because of someone’s sex, they are treated less favourably.

It is important to emphasise the requirement that the treatment must be “because of sex”. If a woman can show that she was treated less favourably than a man by not being promoted to a certain position, that will not qualify as sex discrimination unless she can show that the reason she was not promoted and he was because of her sex. 

To prove direct discrimination, you must show something more than a mere difference in treatment, as the Court of Appeal held in Madarassy v Nomura International plc [2007] EWCA Civ 33. So – it isn’t enough to just show that you received less favourable treatment and you are a woman/man. You must show that you received less favourable treatment because of your sex.

The following are potential examples of something ‘more’ that satisfy a tribunal that the ‘burden of proof has shifted’, thus requiring an employer to explain the reasons for their actions and why they were not discriminatory:

• Sexist comments being made in the workplace;
• Sexist assumptions being made about a woman or man’s level of commitment and responsibilities outside work (ie ‘this is a job that requires a lot of long hours and travel. We didn’t think you were suited to it”).;
• A pattern of promotions or hiring practices that seem to disproportionately hire someone of one sex;
• Being rejected from a role or job in stereotypical terms or because of sexist views of customers/service users (“lots of our customers might not be comfortable with a male carer at the nursery”).

Indirect sex discrimination

Indirect sex discrimination takes place when a provision, criterion or practice (eg a policy) that applies to everyone puts either women or men at a particular disadvantage compared to the other sex. It does not need to put all women or men at that disadvantage. 

If a woman can show that a policy puts women in general at a disadvantage and it impacts her in that way, it will be for the employer to show it is a proportionate means of meeting a legitimate aim.

So, a banker might allege that a policy that ‘no home working is allowed and work hours are between 9am and 8pm’ disadvantages her and other women in the bank, since women in the bank are more likely to have caring responsibilities and need to be home in the evening. It would then be for the bank to show it was a proportionate means of meeting a legitimate aim.

Or, a female security guard might allege that a policy that all security guards must be over 1.8m puts her, and other women, at a disadvantage compared to men – as men are more likely to be over 1.8m tall. Again, it would then be for the employer to justify why that policy was a proportionate means of meeting a legitimate aim.