Is this sexual harassment?

That's the title of a social experiment aired by the BBC earlier this week which invited a group of 20 people aged 18-30 to discuss whether a woman was subjected to sexual harassment at work.

The discussion group are shown a video which is interrupted at various points to allow them to discuss what had happened and decide whether she had been harassed by her colleague.   

They are not told about the legal definition of sexual harassment until the end and, once they understand this, many changed their minds and decided that the female member of staff had been sexually harassed.

What happened?

The drama is set in a bar. Kat is employed as a duty manager alongside an experienced duty manager Ryan. Over the course of several weeks, Ryan:

• Leans over Kat when she is on the computer (ostensibly to help her)
• Compliments her on her perfume
• Refers to him as being "the brains" and her "the beauty" 
• Encourages her to drink after work
• Puts his hands on her back and moves them down to her waist
• Tries to kiss her (after work) ... and within minutes of being rejected contacts HR to inform them of problems with her work which lead to her dismissal.

The fictional tribunal accepts that Kat has been sexually harassed because Ryan has created an atmosphere that is unwanted and has the purpose or effect of violating her dignity or creating an environment that is intimidating, degrading, hostile or humiliating or offensive to her.

The statutory defence

As an employer, you can avoid liability if you can demonstrate you took all reasonable steps to prevent harassment or discrimination.

To establish this, you must:

• Have a policy that staff know about and have received training on
• Take steps to deal effectively with complaints
• Take appropriate disciplinary action against perpetrators.

The drama didn't address this. But, what I found most interesting was the comments made by many of the discussion group who initially viewed the issue through the prism of what they think is acceptable on a night out rather than what is acceptable in the workplace (although that's a moot point in itself). For example, a couple of the men said that it was okay  to "test the waters" to see if their colleague was interested in them sexually.

This suggests that they haven't received adequate training about workplace harassment and if they had behaved in the same way as Ryan (which some of them thought was perfectly reasonable) their employers would not be able to rely on the statutory defence.

We can help

We deliver practical and interactive training to help your staff understand what is and isn't acceptable behaviour in the workplace. 

Please contact Kirsty Ayre to find out how we can help your organisation.

Our fixed price employment law service

If you are interested in finding out about how we can support you with our fixed-fee annual retainer, or flexible discounted bank of hours service, please contact Rachel Hetherington: rachel.hetherington@irwinmitchell.com or: 44 (0)121 203 5355 for a no obligation quote.

"The debate between the young people is wide ranging and impassioned. The programme reveals just how much confusion and disagreement there is when it comes to specifying exactly where a line should be drawn - a line which can become blurred. It shows the significant differences that exist between the genders when it comes to their perspective on what is acceptable."”