Sexual Harassment is defined as any form
of unwanted verbal, non-verbal or physical conduct of a sexual
nature which occurs, with the effect of violating the dignity
of a person, in particular when creating an intimidating, hostile,
degrading, humiliating or an offensive environment.
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What sort of conduct are we talking about
here? One prime example would be constant innuendos or remarks
about someone’s figure or physical contact like deliberately
brushing up to someone, making contact with someone deliberately
to embarrass them.
In Sexual Harassment cases, they do not have
to be continuous acts. It could be a one off occasion. One
of the typical situations you get is with the Christmas party
when your MD or Senior Management makes an unwanted pass at
his Secretary or any female colleague. The important element
in that is proving that the circumstances as such the conduct
is unwanted and the party knows that the conduct is unwanted.
You can get sometimes unusual situations where there has been
some form of boyfriend/girlfriend relationship developing and
there is a break up and one party claims against the other
party that there has been sexual harassment. This is not an
unusual circumstance provided that the other party knows that
the conduct is unwanted or objectively it is obvious that the
conduct is unwanted and that person continues with that conduct.
Then they would be guilty of Sexual Harassment in the workplace.
It is the employer’s duty to prevent
such conduct in the workplace but provided they have done all
they reasonably can to prevent that, then they can run that
defence as not being responsible for the conduct because they
have done all they could to stop it. What they are effectively
saying here is that if the employer has done all they can and
such conduct occurs, then provided they properly investigate
it, come to a reasonable conclusion based on that investigation,
then they have a defence.
What do we mean by unwanted? It certainly
means unwelcome or uninvited. Another defence an employer can
run is that the conduct was not within the course of employment.
Examples of this include what I will refer to as the Police
cases where there is an allegation that a Police Officer has
visited another female Police Officer off duty and made unwanted
advances. The fact that they are both Police Officers does
not mean that the employer is liable for the conduct of one
because that person is not acting in the course of their employment,
they are not on duty they are visiting someone at their home
whilst they are off duty.
I am now going to deal with the issue of
new legislation which are the Employment Equality Sexual Orientation
Regulations 2003. Sexual Orientation is defined as conduct
towards person of the same sex or of the opposite sex. It relates
to situations where someone treats someone less favourably
on the grounds say that they are gay or in the alternative,
on the grounds that they are not gay and the person treating
them less favourably is gay. This would cover situations where
heterosexuals gang up on gay people or a situation where a
gay person mistreats a non-gay person.
Because this new law is recent, there are
not many cases on this issue yet but it is clear that it is
discrimination to treat someone less favourably on the grounds
of their own personal sexual preferences.
That completes the section of Sexual Discrimination.
I hope it has been useful to you but please remember that I
have simplified the law in relation to Sex Discrimination.
It is an extremely complex area of law and it is difficult
to prove Sex Discrimination because people can provide lots
of different reasons for why they are treating someone else
differently. It is difficult because in most cases the Tribunals
will be faced with an allegation or a series of allegations
and will have to look at those allegations and see if they
can draw an inference that the reason for that treatment is
related to the discrimination.
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