Employers have a legal duty to take reasonable steps to prevent sexual misconduct in the workplace. Failing in that duty can expose you to having to pay increased compensation if an employee makes a successful sexual harassment claim. In addition, it can reduce staff morale and severely damage your commercial reputation. Accordingly, understanding what constitutes sexual misconduct in the workplace and the measures you should implement to mitigate the risk of such conduct is essential.
If you need help with this or any other area of HR and employment law, our HR advisors are on hand to assist. With a proven track record of providing cost-efficient, commercial advice and keeping our clients tribunal free, we are proud to be trusted HR partners to countless small businesses throughout the UK.
Call us now on 01491 598 600 or Click Here to Make An Enquiry and we will be delighted to help you.
What Does The Law Class As Sexual Misconduct In The Workplace?
The legal definition of sexual harassment is found in the Equality Act 2010. The Act provides that sexual misconduct arises when someone engages in unwanted behaviour of a sexual nature, whether physical, verbal, or non-verbal, that creates an intimidating, hostile, degrading, offensive, or humiliating working environment.
Behaviour can be sexual misconduct if the perpetrator intended to achieve the effects mentioned above, even if they did not. Conversely, sexual misconduct in the workplace can occur if the behaviour had the effects listed above despite this not having been the perpetrator’s intention.
What Constitutes Sexual Misconduct In The Workplace?
Understanding what constitutes sexual misconduct in the workplace is crucial for adhering to your legal obligation to prevent it.
The legal definition of sexual misconduct in the workplace is very broad, encompassing obvious acts of harassment and more subtle gestures. Examples of some of the acts that may be caught by the legal definition of sexual misconduct include the following:
- Unwelcome sexual advances
- Sexual propositions
- Leering
- Suggestive gestures
- Sexually inappropriate jokes
- Displaying explicit material, for example by way of poster or screensaver
- Inappropriate questions about a colleague’s sex life
- Unwanted physical contact, such as touching a person’s leg or hugging them
- Inappropriate comments about someone’s appearance
- Sexual assault and rape.
Conduct that a perpetrator may dismiss as ‘banter’ falls within the legal definition of sexual misconduct in the workplace if it has the effects we mention above. It is no defence to a sexual harassment claim to allege that the behaviour was intended as ‘harmless’ flirting or banter.
How Can You Prevent Sexual Misconduct In The Workplace?
Employers are expected to take reasonable steps to prevent sexual misconduct in the workplace. The law does not provide a minimum standard to which employers must adhere in this regard. Instead, it expects employers to consider the risks inherent in their own organisation, coupled with factors such as their size and resources, and do what is reasonable.
A key step employers can take to prevent sexual misconduct in the workplace, regardless of their size, is developing an effective anti-sexual harassment policy. The policy should ensure that everyone within the organisation understands what is expected of them and the ramifications of non-compliance.
What you should include in your policy depends heavily on the nature of your organisation and its size. However, common topics covered by anti-sexual harassment policies include the following:
- A clear definition of what constitutes sexual harassment
- An explanation of the standards of behaviour expected of everyone working within the organisation
- Details of how to make a complaint
- The role played by supervisors and managers in preventing sexual misconduct in their teams and addressing any sexual harassment complaints
- The organisation’s process for dealing with complaints of sexual misconduct in the workplace
- The likely consequences for anyone who fails to comply with the policy.
You should ensure everyone working in your organisation is familiar with the policy and its terms. An effective way to do this is through regular staff training, which we discuss further below. You may also choose to include the policy in your staff handbook, send periodic email reminders, and refer to it during meetings. You should bring the policy to the attention of third parties visiting your workplace, for example, through the use of appropriate signage.
An anti-sexual harassment training programme is an ideal way to remind your workforce about your policy and ensure they understand their rights and obligations. The training should cover all pertinent aspects of your policy, such as what sexual misconduct in the workplace is, how staff can report instances of sexual harassment, how you will address any such reports, and the support available for those involved in a sexual misconduct matter.
There may be many more measures your organisation could reasonably take to prevent sexual misconduct in the workplace, but they will depend on factors unique to your business. Our HR experts will risk-assess your business and advise on how you might mitigate the risks to ensure compliance with your legal obligations.
Call us now on 01491 598 600 or Click Here to Make An Enquiry and we will be delighted to help you.
