Advice and representation for individuals
Facing Sexual Harassment at Work
Sexual harassment in the workplace takes place where a person engages in conduct of a sexual nature which is unwanted and has the purpose or effect of violating another person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. It does not matter if the perpetrator did not intend to make the victim feel harassed.
Sexual harassment can take many forms, including:
- sexual comments or jokes;
- displaying sexually graphic pictures, posters or photos;
- suggestive looks, staring or leering;
- propositions and sexual advances;
- making promises in return for sexual favours;
- sexual gestures;
- intrusive questions about a person’s private or sex life or a person discussing their own sex life;
- sexual posts or contact on social media;
- spreading sexual rumours about a person;
- sending sexually explicit emails or text messages, and
- unwelcome touching, hugging, massaging or kissing.
A one-off incident can amount to sexual harassment.
Sexual harassment must be “of a sexual nature”. It is distinct from harassment related to sex, which is also unlawful.
How are people protected against sexual harassment at work?
Employers owe duties to their employees, which include a duty of care and a duty to provide a safe place of work. Employees are also protected against sexual harassment at work under the Equality Act 2010 (the Act). Simply, this means that employees have the right not to be sexually harassed at work.
Employees also have the right not to be treated unfavourably at work because they have either rejected or submitted to sexual harassment.
Claims for sexual harassment can be brought in the Employment Tribunal against the alleged harasser personally. Claims can also be brought against the employer, although the employer can avoid liability if they have taken “reasonable steps” to prevent harassment. There are other claims available to employees who have been sexually harassed at work.
Does the act of sexual harassment need to take place at work?
Sexual harassment might not always take place in the workplace itself. It could take place outside the workplace and/or outside of working hours at work-related events. For example, sexual harassment which takes place at a client’s office or at a work party may still amount to sexual harassment. Sexual harassment may even occur virtually, for example, we have acted for individuals who have complained of harassment over Zoom. An employer’s duties to its employees extends to all work-related situations and environments.
It is difficult to bring a claim directly against an employer for harassment perpetrated by a third party (such as a client or contractor), unless it can be shown that the employer has treated the employee less favorably after learning about such harassment. There are plans to change the law in this area to make employers liable for harassment by third parties, but it is not clear when this change will come into force.
What should you do if you are being sexually harassed at work?
If you have been, or are being, sexually harassed at work, you should consider taking the following steps:
- If you feel able to, you should make it clear to the person you believe is harassing you that the treatment is unwanted and ask them to stop.
- Make sure that you keep a diary or make some other contemporaneous notes of the treatment. This is likely to be helpful evidence which will support your version of events.
- Check to see if your employer has a sexual harassment policy or an equality and diversity policy. If so, consider the guidance contained in those policies.
- Report the harassment to your employer (see below on how you can do that).
- If, after notifying your employer, the harassment continues, or you do not think the situation has been handled properly or fairly, you may want to consider formalising your concerns by raising a grievance.
- If you have concerns for your safety, or believe a criminal offence has taken place, you should consider making a report to the police.
Who should you report sexual harassment concerns at work to?
Check if your employer has a sexual harassment policy or an equality and diversity policy which specifies to whom you should report harassment concerns. You may wish to speak to your line manager in the first instance. If you are not comfortable reporting your concerns to your line manager or the person named in your employer’s policies, you may wish to report your concerns to someone sufficiently senior or within Human Resources. If your concern is not raised in writing, keep a record of who you told, when you told them and what you said.
Is it possible to raise sexual harassment concerns anonymously?
Yes, you can raise sexual harassment concerns anonymously. However, it will make it much more difficult for your employer to investigate the concerns if you have not identified yourself to them and participated in the investigation.
If you are subject to detrimental treatment by your employer, or anyone else at work, because you have complained about sexual harassment, then you will have a separate victimisation claim.
In some circumstances, the Employment Tribunal will protect the identity of victims in sexual harassment proceedings, and they often do.
Is it possible to raise sexual harassment concerns confidentially?
Yes, you can ask your employer to keep your identity confidential when you raise your concerns. However, your employer may need to investigate your concerns even if you ask them not to, or even if it means revealing your identity, in order to investigate your concerns properly. Your employer should, however, try to keep the matter as confidential as possible, while carrying out an effective investigation into the matter.
Even if your employer tries to protect your identity, it may become obvious to those involved in the investigation who are you, depending on the facts.
If you are subject to detrimental treatment by your employer, or anyone else at work, because you have complained of sexual harassment, then you will have a separate victimisation claim.
Do you need evidence of sexual harassment at work?
You do not necessarily need corroborating evidence in order to report sexual harassment at work. Given the nature of sexual harassment, your account of what happened might be the only evidence you have that the harassment took place. As this may result in your employer (or the Employment Tribunal in any subsequent proceedings) needing to weigh up one person’s account against another, it is helpful if you can collect any additional evidence to support your version of events. This might include notes to yourself or others at the time of the harassment, medical evidence, text or WhatsApp messages and emails.
Can you report sexual harassment concerns if you are not the victim?
Yes, you can report sexual harassment if you are not the victim. For example, if you witness sexual harassment, or suspect that sexual harassment at work has taken place, you can report this to your employer (see above for more details on making a report). If you report sexual harassment concerns, you will also benefit from protection against victimisation for raising such concerns.
Is sexual harassment at work a criminal offence and should you involve the police?
Some acts of sexual harassment at work may also amount to a criminal offence (for example, an act of sexual touching will usually amount to a sexual assault). Such acts may lead to a criminal investigation by the police and prosecution in a criminal court.
If you believe a criminal offence has taken place, you should speak to the police or a criminal lawyer. If you instruct us, we can help you obtain specialist criminal advice.
What is your employer required to do after you report sexual harassment concerns?
Sexual harassment concerns are serious and should be dealt with swiftly. Your employer should investigate such concerns without undue delay. This is likely to involve interviews with you and the person accused of sexual harassment, as well as any potential witnesses. The investigator should also gather other relevant evidence. This might mean conducting a search of email accounts, phone records or CCTV footage, if available. Any investigation should be conducted as confidentially as possible. Your employer may also offer counselling support whilst this process is ongoing.
However, if there is a suspected criminal offence this may change the way your employer’s process operates. For example, the process may be postponed so as not to prejudice a criminal investigation.
It is possible that concerns about harassment will be treated as a grievance. This means you will be invited to a grievance meeting at which you can discuss your concerns and your employer can ask you any questions they may have. Your employer should provide you with the outcome of the grievance in writing and give you the right to appeal if you do not agree with the outcome. Most employers have a grievance procedure which sets out the various stages of the process and your rights.
If your employer concludes that the allegations of sexual harassment (or any other form of misconduct) have merit, they may decide to commence a disciplinary process against the alleged harasser. The alleged harasser will have a chance to appeal against the outcome of any disciplinary process, which might include a finding of sexual harassment and disciplinary sanctions up to dismissal.
If the alleged harasser is a regulated person (such as by the FCA, PRA or SRA) your employer may also need to report their concerns or findings to its regulator which may impact the alleged harasser’s regulatory status and ability to continue working in a regulated role.
How do you bring a claim for sexual harassment at work?
A claim for sexual harassment under the Equality Act 2010 (the Act) must be brought in the Employment Tribunal within three months less one day of the date of the act complained of, or where there is a series of acts, within three months of the last act (although this time limit may be extended to reflect a period of mandatory conciliation conducted by Acas).
Many individuals with sexual harassment claims, particularly those involving allegations of serious sexual assault or rape, feel unable to bring their claim within this timeframe due to the trauma that they have experienced. The Employment Tribunal has discretion to accept a claim late if it considers there are just and equitable grounds for doing so. Take advice without delay if you have a claim you would like to bring late in order to improve the chances of your claim being accepted.
There are plans to extend the time limit for such claims to six months from the date of act complained of (or last in any series of acts) but it is not clear when this change will come into force.
You may also be able to bring a claim under the Protection from Harassment Act 1997 in the civil courts. You have six years from the act complained of to bring a civil claim. The legal test applicable to an harassment claim in the civil courts is different and different legal costs considerations apply.
What sort of compensation is awarded in sexual harassment claims?
There is no limit to the compensation the Employment Tribunal can award in sexual harassment claims. Generally speaking, compensation is based on financial losses as well as injury to feelings and in some cases personal injury or aggravated damages.
How can BDBF assist me if I have been sexually harassed at work?
Our team of employment lawyers are specialists in advising individuals who have experienced sexual harassment at work. We act for employees and partners from sectors such as finance, insurance, law, healthcare and technology. We can:
- advise you on how to raise your concerns and navigate the investigation process and any subsequent grievance process;
- advise you on any sexual harassment claims you may have against the perpetrator and/or your employer in the Employment Tribunal;
- advise you on obtaining a favourable settlement if you wish to leave your employment;
- advise you on any other claims you may have against the perpetrator and/or your employer in other forums, for example a claim under the Protection from Harassment Act 1997 in the civil courts; and
- work with our preferred criminal law firm to obtain criminal law advice for you in a seamless way.
By instructing us, you can be confident that we have the knowledge, experience, and insight to protect your best interests. Our team of specialist lawyers have extensive experience of advising employees and partners in this situation and understand the sensitivity and support required. We understand how stressful it can be to raise accusations and we will work with you to achieve the best possible result.
Recent examples of BDBF’s work in this area
We acted for a lawyer employed by a well-known city law firm who had been sexually harassed by a partner, and whose health had been damaged to such an extent that she was absent on long-term sick leave. We assisted our client with the law firm’s investigation and the SRA investigation. The matter settled on favourable terms, without the need for legal proceedings and she was paid a substantial six figure settlement, all of which was paid tax free, and an exit, shortly after which our client took up employment in a magic circle firm.
We acted for a lawyer employed by a US law firm who had been sexually harassed by a partner. We assisted our client with the internal investigation and secured a six-figure settlement, a significant proportion of which was paid tax free as injury to feelings.
We acted for the complainant in a high-profile sexual harassment claim against Martyn Percy and Christ Church Oxford. We supported our client with achieving settlement which did not include a gagging clause (often referred to as an ‘NDA’). This matter was widely reported, including here.
