When does a regulator pay costs? The Court of Appeal has spoken
Recent events and the subsequent #metoo campaign have played a part in helping to uncover the widespread abuse which has been, and continues to be, endured by many women. Although the shocking scale of this problem only seems to have been truly appreciated very recently in the media, previous surveys had already hinted at the extent of the problem. For example, the Trades Union Congress had already published research last year in which 52% of women stated that they had experienced some form of sexual harassment. However, the recent level of attention the problem of sexual harassment has received does seem something of a pivotal moment in tackling the issue.
Clearly this is a societal problem. However, it is also obvious that the workplace plays a huge part in sustaining this culture. Over eighty percent of women surveyed by TUC stated that their experience of sexual harassment had taken place on work premises. A significant number also reported that such behaviour had taken place during work related events, such as Christmas parties. There can be no denying the fact that this is a significant workplace problem which needs to be tackled by employers.
The obligation upon employers to take active steps to prevent sexual harassment is not just a moral one, but a legal one. Under the Equality Act 2010 sexual harassment is deemed to occur where:
This comprises a broad array of behaviour. Unacceptable conduct can consist of the use of words alone and does not need to be accompanied by more physical actions. Tribunals will also rarely be sympathetic towards accused harassers where their defence is that they were simply engaging in “banter”. Victims may only be going along with “banter” to the extent that they feel they have to and it can be very hard for someone to speak up against such a culture in a male dominated industry. Individuals should also be aware that it is not necessary for someone to have previously made it clear that they find behaviour unacceptable in order for behaviour to be deemed as harassment.
Although employees should clearly be concerned to ensure they are not acting unacceptably (since they can be found personally liable), employers can also be held responsible for their employees’ actions due to the principle of ‘vicarious liability’. All employers would be well advised to take reasonable steps to prevent such behaviour in the first place and also to deal with it adequately where complaints are made that harassment has taken place.
Overall, recent accounts show the extent to which this unacceptable behaviour has been allowed to subsist via a culture of intimidation. Employers need to play a key part in reversing this trend by making it clear that not only have they taken steps to foster an environment supportive of dignity and respect, but also one of openness whereby victims are not fearful of being penalised for coming forward.
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