Sexism presents a substantial risk management challenge for employers, including GP practices, because they have direct vicarious liability for acts of harassment. Such cases tend to involve titillating or sensational details and can be embarrassing and expensive.
The Equality Act 2010 expressly forbids sexual harassment; and less favourable treatment because of a person's reaction to harassment either because of having rejected the conduct or having submitted to it.
What is sexual harassment?
Sexual harassment is 'unwanted conduct of a sexual nature which has the purpose or effect either of violating a person's dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for a person'.
The classic scenario is of a male employee leering at a female junior colleague. However, sexual harassment can include same sex behaviour. Sexual advances, touching, sexual jokes or comments, the display of pornography, or sending emails with sexual material are all covered.
|Sexual harassment defined|
Unwanted conduct of a sexual nature which has the purpose or effect either of violating a person's dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for a person.
Source: Equality Act 2010
Tricky issues can arise when an office romance goes wrong. Crucially, a victim need not show that they have expressed an objection. The law also protects bystanders who find a sexist environment offensive.
If someone engages in behaviour with the purpose of violating a person's dignity or of creating an adverse environment, then the victim would succeed in a claim, even if they were unable to show that it did violate their dignity or create an adverse environment. If someone intends to cause offence, whether it is reasonable for the person complaining to have been offended is not relevant.
Employees may be harassed by customers, clients, suppliers, agents and third parties.
The informality of the modern workplace can lead to a lack of clarity about what is acceptable. 'Banter' can quickly slide into unwanted conduct which then offends.
The conduct has to be assessed from the point of view of the harassed person. It has been argued that until a harasser discovers that conduct is unwelcome, the harasser cannot tell that it is unwanted. The courts have rejected this argument.
Single comments and conduct can, if of a sufficiently serious nature, be categorised as harassment even if done on one occasion only.
Burden of proof
The burden of proof operates harshly against employers. Under the Equality Act, if there are facts from which a tribunal could decide, in the absence of any other explanation, that a person has discriminated, the tribunal must rule that discrimination occurred. It is vital therefore to avoid a factual situation arising in the first place.
A statutory defence is available, namely that the employer took all reasonable steps to prevent the unlawful actions taking place.
An obvious reasonable step is to have a policy forbidding discrimination, but often employer policies languish unread and unimplemented. Staff must be made aware of the employer's duty, and their individual responsibilities.
The employer must be able to demonstrate that the policy has been brought to the attention of employees, by making reference to it in documents, publishing it in an obvious place and, crucially, by providing training on the policy - a step often overlooked. Records should be kept of any training that is undertaken.
A wise employer will address any inappropriate conduct, whether well or ill intentioned. This extends even to social events outside work the employer organises.
|A case of harassment|
In Porcelli v Strathclyde Regional Council, an employee complained about comments made, such as: 'If you can't climb a ladder you shouldn't be in the f***ing job.'
A male employee would stare at her and follow her with his eyes around the room. Suggestive remarks were made, such as picking up a rod and asking her whether she had any use for it. Her appearance was compared to a nude female in the newspaper. Men brushed against her.
It was accepted in that case that sexual harassment was not limited to physical conduct.
Any policy must have the support of the practice manager and the partners at a GP surgery and appropriate disciplinary sanctions must be applied to any breaches.
A sound and actively circulated policy is necessary to avoid both the individual perpetrator and the employer facing damages against them.
A single equality and harassment policy can encompass all types of discrimination, harassment and bullying. It is never safe to assume that harassment does not happen. Posters in public places can be used to discourage harassment by non-employees. Staff surveys can help to identify hot spots.
Confidential reporting systems enable individuals to raise concerns. Once an allegation is made, careful records should be kept and the procedure followed in a timely fashion.
An alleged perpetrator might need more training.
Any internal investigation should be rigorous and objective. If the conclusion is that harassment probably did occur, the alleged harasser should be disciplined. If relocation or suspension is an issue, the harasser should be relocated or suspended, not the victim.
Compensation in discrimination cases, including sexual harassment, for financial loss and injury to feelings is not capped. In severe cases, awards of up to £30,000 for injury to feelings can be made in addition to any claim for loss of earnings.
Sexual harassment is therefore not a matter to be treated lightly by any employer.
- Jean Sapeta is a partner and head of employment at specialists medical solicitors Hempsons, www.hempsons.co.uk