Recent revelations about movie mogul, Harvey Weinstein, and the ongoing sexual harassment scandal engulfing Parliament have brought into sharp focus the issue of gender relations and appropriate behaviour in the workplace. Divisions in attitudes have been exposed across generational lines and even within the Cabinet but, tellingly, the culture that has emerged appears to pervade all political persuasions. Therefore, whilst it may be tempting to view the current furore as being confined to the Westminster bubble, it is possible to draw wider conclusions of relevance to workers up and down the land, notwithstanding the atypical (some might say, eccentric) working arrangements that seem to obtain in the corridors of power.
One phrase bandied around in the course of the debate on what constitutes inappropriate behaviour is that it is a “grey area”, usually accompanied by its close rhetorical cousin: “Where do you draw the line?”
So is it really the case that social interactions between men and women are so multi-layered and complex as to defy objective classification as to their appropriateness?
Whatever your view (and they are legion), the law in the shape of Section 26 of the Equality Act 2010 regulates the behaviour of the sexes towards each other by prohibiting one party from engaging in “conduct of a sexual nature” towards another which has the purpose or effect of:
- Violating B's dignity, or
- Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
The law also recognises that imbalances of power are conducive to attempts by one party to exert control over another for their own sexual gratification and subsection 26(3) operates to prevent individuals being subjected to a detriment because they have either spurned or acquiesced to the attentions of another.
What does this mean for employers?
Given that employers can be held vicariously liable for the actions of their employees (even, in some cases, where the conduct takes place away from work), it is in their interest to provide training and guidance to staff; clear policies setting the boundaries of acceptable behaviour will help individuals avoid confusing “harmless flirtation” with more serious transgressions.
Inevitably, proposals to “police” workplace relationships will attract charges of humourlessness and interference but such a view demonstrates a fundamental misunderstanding of the legal framework: nothing in the Equality Act prevents willing participants engaging in banter or even more serious romantic overtures. The law does seek to protect:
- Those for whom the sexual attention of another is unwelcome to the point of feeling intimidated etc.
- Those who are at risk of exploitation by virtue of a power dynamic over which they have no control
It is imperative to understand that an intention to intimidate or exploit is irrelevant if that is the feeling that certain behaviour elicits in the object of such conduct. The safeguard built into the Act is that it must be objectively reasonable for a person to feel that way so an innocuous act cannot be deemed to constitute harassment if it is objectively assessed as being innocuous.
Employers also benefit from a statutory defence enshrined in Section 109 of the Equality Act, which states that provided they have taken steps to prevent harassment by an individual employee e.g. training, that person’s conduct cannot be attributed to it and the only cause of action is against the individual rather than the employer. In practice, employers may not wish to distance themselves from employees who are the subject of allegations of impropriety but it serves to illustrate the checks and balances built into the legislation.
While this undoubtedly remains a sensitive area, promoting a culture of equality and transparency remains the best way for employers and their staff to achieve a working environment that ensures mutual respect and dignity.
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