Sex Discrimination

Sexual Harassment In The Workplace

Topics covered within this page are: sex discrimination, gender discrimination, equal opportunities, equality act 2010, gender equality, sex harassment, sexual harassment, cases on sexual harassment, sexual misconduct.

Sex Harassment – Sex Discrimination

Direct Sex Discrimination – is when one person is treated ‘less favourably’ than another on the grounds of their sex.

Indirect Sex Discrimination – is less obvious and inadvertent. In the field of employment, it exists where a “provision, criterion or practice” is applied or would apply equally to men and women but:

  • Which puts or would put women at a particular disadvantage when compared with men;
  • Which puts her at that disadvantage;
  • Which he cannot show to be a proportionate means of achieving a legitimate aim.

Sex Harassment – can amount to harassment of the same sex, or opposite sex. To see how the Equality Act 2010 defines harassment, click here:

Sexual Harassment – is of a sexual nature.

The European Commission Code of Practice 1991 defines Sex Harassment as “unwanted conduct of a ‘sexual nature’ or other conduct based on ‘sex’ affecting the dignity of men and women at work. This can include unwelcome physical, verbal or non-verbal conduct”

  1. Victimisation – In an employment context, means treating someone ‘less favourably’ than others because that person exercised a statutory right.
  2. Detriment – A detriment is where an employee is “disadvantaged”. It a less of a hurdle to prove than ‘less favourable treatment’.

The ECCOP 1991 also states that “Sexual harassment is sex discrimination because the gender of the recipient is the determining factor in who is harassed”. Therefore, where I have used the word ‘harassment’ below, it would also apply to ‘discrimination’.

health and safety at work, health & safety at work, health safety work, health and safety in work, workplace health and safety, at work health and safety,

Health and Safety At Work – Sexual Harassment

The following is an excerpt from the European Commission Code of Practice 1991.

“Sexual harassment pollutes the working environment and can have a devastating effect upon the health, confidence, morale and performance of those affected by it. The anxiety and stress produced by sexual harassment commonly leads to those subjected to it taking time off work due to sickness, being less efficient at work, or leaving their job to seek work elsewhere.”

“Since sexual harassment is a risk to health and safety, employers have a responsibility to take steps to minimize the risk as they do with other hazards.”

Bingo! We have something to sink our teeth into here. Sex harassment is a [risk] to [health and safety] and can have a [devastating effect] upon the [health] of those affected by it. It could well be argued under the auspices of the Health & Safety at Work Act 1974 that sexual harassment is a breach of the employers duty of care. This may give rise to the aggrieved employee claiming constructive dismissal in an employment tribunal, due to a breach of the mutual trust and confidence. This could entitle the employee to repudiate the contract of employment.

I want to refer to some cases on sexual harassment, one of which is that of Ms. Angelica Graham. This is what occurs when an employer fails to take any steps to ‘prevent’ sexual harassment from occurring within the workplace. The employer [Beadles] had failed to undertake any training, or render Ms. Graham ‘guidance or advice’ with regard to sex harassment. Ms. Graham worked for her employer for just one week.

Cases on Sexual Harassment

Beadles Group Ltd v Angelica Graham 2003. Ms Angelica Graham was awarded £178,000 due to the ‘conduct of her line manager’ during her first week at work. The Employer, Beadles Group Ltd., had no written policy on sex discrimination, harassment or equal opportunities and had failed to provide training, guidance or advice to employees’ on the seriousness of bullying and harassment. The Employer was therefore liable. It had failed to take “reasonable and practical steps” to “protect” its employees and further had failed to “prevent” harassment from occurring within the workplace.

More case law on sexual harassment in the workplace

Consult Your Doctor – “Medical Evidence”

I cannot stress enough, that prior to entering the grievance procedure, and lodging your letter of grievance, that you consult your doctor, and discuss the ‘impact’ which sex harassment is having upon your health. You want to inform your doctor that you are going to lodge a letter of grievance to put a stop to the work harassment. Also discuss with your doctor how the workplace harassment is effecting both your mental and physical health, and how it is making you feel. Request that your discussion is imputed onto your medical records, as it may become necessary at a later date to exhibit your medical records to an Employment Tribunal.

If you can establish that sex/sexual harassment was “materially injurious” to your health, then your employer may be liable for any part of the injury which you suffered as a result its failure to ‘prevent that injury’ from occurring. For example, in the case of Ms. Graham, medical evidence was given in the Employment Tribunal which established that it would take two-and-a-half years before she could work again. The size of the award (£178,000) reflected the ‘mental trauma’ which she had suffered [as a consequence] of sexual harassment at work.

This is why it is essential, that you ‘establish facts’ from which the Employment Tribunal could conclude, that on the balance of probabilities, what you have alleged [sexual harassment] has actually occurred. Submitting disclosure from your own medical records (as medical evidence) will establish these facts.

In our own case, we consulted our doctor (i) before lodging our letter of grievance, (ii) throughout the grievance procedure, and (iii) after the grievance procedure had concluded. By the time we reached the Employment Tribunal (eight months later) our employer’s solicitors denied that sex harassment was the “causation” of our ill health, and requested we provide ‘medical evidence’ to support our Employment Tribunal claims [ET1]. This is where the majority of employees’ fall foul, and where their Employment Tribunal claim comes to a grinding holt, due to the very fact they are unable to provide [medical evidence] to support what they have alleged.

Again, we exhibited specific medical disclosure from our own medical records. These ‘exhibits’ catalogued our conversations with our own doctor, which established the harm, which had occurred as a consequence of being subjected to a “systematic campaign” of workplace harassment, which our employer had failed to prevent (eg. anxiety, panic attacks, high blood pressure, stress, sleep deprivation, depression and asthma). Our employer’s solicitors then referred us to consult with their own ‘medical expert’ in Harley Street, London. Days after those visits took place, our employer offered us a substantial settlement to withdraw our Employment Tribunal claims. The medical evidence was irrefutable. And so it seems, that visiting our doctor once every fortnight, had paid off.

H.M. Prison Service v Salmon [2001] IRLR 425, EAT case 21/00 on 24th April 2001 – It is legitimate when assessing compensation in a discrimination case for an employment tribunal to treat “stress and depression” as part of the injury to be compensated for under the heading “injury to feelings”.

Establishing Your Employer’s Liability For Sex Harassment

Caniffe v East Riding of Yorkshire Council (2000, IRLR 555, EAT) – The Employment Appeal Tribunal ruled that the proper approach Employment Tribunals should take when deciding on liability was firstly, to ‘identify’ whether any “preventative steps” had been taken by the employer. Having done so, to go on secondly to consider what “further steps” the employer could have taken which were [reasonably practicable].

In our own letter of grievance, we had made it evident that our harassers “unwanted conduct” was “materially injurious” to our health. Consequentially, we no longer wanted to work with our harasser, as s/he was the “causation” of our ill health. However, due to our employer’s ignorance of its “statutory duties”, and its subsequent omission to separate us from our alleged harasser, it was “vicariously liable” for failing to prevent further acts of harassment, which were inflicted upon our persons. As such, we wrote an appendage to our letter of grievance. This outlined our employer’s “statutory duties”. It also made it clear, thatany further “omission to act” to “protect our health” and “ensure our safety” within the working environment, would amount to a breach of the “mutual trust and confidence”.

Morrow v Safeway Stores [2002] IRLR 9 – The EAT holds that any breach of the implied duty of trust and confidence will inevitably be repudiatory, entitling the employee to resign and claim constructive dismissal.

Separating the Harasser and Victim of Sexual Harassment

If you are a victim of sexual harassment, then make it clear in your letter of grievance to your employer that ‘you no longer want to work with your harasser’. The ECCOP 1991 already acknowledges that sex harassment has a “devastating effect upon those affected by it”. Therefore, write in your letter of grievance that your harasser/s “unwanted conduct” poses a “foreseeable risk of harm” which is “prejudicial” to your health. Invoke the word “danger” from section 44 of the Employment Rights Act 1996. As such, your harasser poses a *danger to both your mental and physical health. See the segment on whistle-blowing.

Below is employment case law to back this up.

Fletcher and Steele v Cannon Hygiene Ltd – A failure by an employer to separate two women from their female harasser amounted to harassment. The employer failed to take sufficient steps to ‘protect’ them from further sex harassment.

This case takes into account the European Commission Code of Practice on Sex Harassment 1991 to separate the victim from the alleged harasser: “Even where a complaint is not upheld, for example because the evidence is regarded as inconclusive, consideration should be given to transferring or rescheduling the work of one of the employees’ concerned rather than requiring them to continue to work together against the wishes of either party.”

Balgobin and Francis v London Borough of Tower Hamlets (1987, IRLR 401, EAT) – Sex discrimination can also occur when the victim is forced to continue working in the same place as the harasser against her own wishes.

Spring v Guardian Assurance plc, ((1994) 2 All ER 129) – “The changes which have taken place in the employer-employee relationship, with far greater duties imposed on the employer than in the past, whether by statute or by judicial decision, to care for the physical, financial and evenpsychological welfare of its employees”.

* Harvest Press Ltd v McCaffrey. (EAT). (1999)IRLR 778 – The EAT upheld the Tribunal’s decision saying that the words in the statute (ERA 1996 S.44 & 100) “are quite general” and that a “danger” could cover “dangers” caused by the behaviour of other employees’. The EAT gave other examples where co-workers’ behaviour could give rise to “danger”

Employers Preventative Steps to [Prevent] Sexual Harassment at Work

A failure by the employer to take “preventative steps” such as to champion, promote, train, or embed its sex harassment policies into the workforce at large, would “establish the fact” to an Employment Tribunal, that the employer had failed to undertake “reasonable and practicable steps” to prevent both sex discrimination or sexual harassment from occurring within the workplace.

Employer [Vicarious Liability] for Sexual Harassment

Where an employee is subjected to sexual harassment or sex discrimination, whilst in the course of their employment, the employer can be held vicariously liable whether it knew (or did not know) that sexual harassment had occurred or was taking place. This includes being subjected to sexual harassment fromthird parties, such as customers or patients.

Should your employer fail to take any remedial steps to put an end to sex harassment, or expects you to continue to work with your harasser whilst undertaking an investigation, any further acts of sexual harassment, which are inflicted upon your person, would make the employer “vicariously liable” for sexual harassment and or sex discrimination (see below).

Waters (A.P.) v. Commissioner of Police For The Metropolis [2000] 1 WLR 1607; [2000] UKHL 50; [2000] IRLR 720
“If an employer knows that acts being done by employees’ during their employment may cause physical or mental harm to a particular fellow employee and he does nothing to supervise or prevent such acts, when it is in his power to do so, it is clearly arguable that he may be in breach of his duty to that employee. It seems to me that he may also be in breach of that duty if he can foresee that such acts may happen and, if they do, that physical or mental harm may be caused to an individual.”

Sexual Remark – Sexual Harassment At Work

Even a ‘one-off’ sexual remark can amount to sex discrimination. The ECCOP 1991 makes it clear that it is “for each individual to determine what behaviour is acceptable to them and what they regard as offensive”. This is why it is so very important in your letter of grievance that you state how the conduct made you feel.

Insitu Cleaning Co Ltd v Heads [1995] IRLR 4 – the EAT held that a ‘sexual remark’ was discriminatory. Mrs. Heads was greeted in a meeting by the words “Hiya big tits”. She found the remark “very embarrassing” and “distressing”. The tribunal found that the remark was sufficiently serious to constitute a “detriment” for which the employer’s were “vicariously liable”

The European Commission Code of Practice 1991 – On Sex Harrassment – Sex Discrinination in the Workplace 

I suggest you take the time to read through the European Commission Code of Practice 1991. This establishes what your employer should do, where an employee complains to their employer of an incident of sex harassment, sexual harassment, sexual misconduct, sex discrimination or gender equality at work. It is about four pages long. This [Code of practice] has now been enshrined into the Equality Act 2010. The Sex Discrimination Act and its amendments are now defunct, having been superseded by the Equality Act 2010. However, Employment Tribunals have a duty to observe the ECCOP 1991 on Sex Harassment.