Although sexual harassment is not specifically proscribed by the Sex
Discrimination Act 1975, case law has now long established that sexual
harassment conduct can fall within the scope of section 1(1) and that it
constitutes unfavourable treatment on the grounds of sex. Harassment can be
unlawful even when it is directed against same sex colleagues and transsexuals.
The EC Recommendation and Code of Practice on the protection of the dignity
of men and women at work defines sexual harassment in terms of "unwanted
conduct of a sexual nature, or other conduct based on sex affecting the dignity
of women and men at work. This can include unwelcome physical, verbal or
non-verbal conduct". Such conduct will be unlawful where it is unwanted,
unreasonable and offensive to the recipient. Even apparently harmless sexual
banter can be intimidating, hostile or humiliating for the recipient.
The notion of harassment as unwanted conduct was central in the case of
Driskel v Peninsula Services. A manager suggested to a woman who was attending
a promotion interview that she should wear a short skirt and a see-through
blouse if she wanted to be successful. She did not complain. Evidence was given
at the original hearing that the manager made similarly vulgar comments to male
employees. The EAT decided these comments amounted to sexual harassment and
overturned the tribunal’s original decision, which decided the remark was
intended to be flippant, could not have reasonably been taken seriously and was
not taken seriously by Driskel.
In Driskel, the EAT provided guidance to tribunals on how to handle claims
of sexual harassment. It stated that the ultimate judgment as to whether there
is sex discrimination reflects an objective assessment by the tribunal of all
the facts. This will include the applicant’s subjective perception and the
understanding, motive and intention of the alleged discriminator. In situations
where not everyone would find certain behaviour offensive, it may be important
for the recipient to make her objections known to the alleged harasser so he is
put on notice that his conduct is unacceptable to that person.
Case law demonstrates it is important for employers to have both sexual
harassment statements and policies with procedures encouraging employees to
speak up if they feel they have been subjected to sexual harassment. Employers
should actively discourage such behaviour, especially if they have been put on
notice that comments are being made. An employer who does this and has a clear
and active policy seeking to prohibit sexual harassment may be able to defend a
claim of sexual harassment, in which case the liability will fall on the
harasser, not the employer.
Aggrieved employers may take comfort in the fact that in the US, the law of
sexual harassment is far more prevalent. In some states, up to one-fifth of all
employment cases are brought on the ground of sex harassment. There is usually
a 10-month time limit for bringing such claims, which are not usually litigated
for another two years, in front of a jury. Legal costs for defending such
claims can run up to $500,000, and the awards can be higher. By contrast, in
France and Germany, cases of sexual harassment are almost unknown.