Sexual Harassment in The Workplace – An Uber Mistake?

After Uber fires employees as a result of sexual harassment claims, we take a look at the legal aspects of these kinds of cases and how to deal with them.

You will have no doubt witnessed in the news earlier this month that Uber dismissed more than 20 employees after sexual harassment claims led to a company-wide investigation.

One of the complaints was by a female engineer who complained that her manager propositioned her for sex when she joined and that a director had stated ‘the women of Uber just need to step up and be better engineers’ when explaining the low numbers of female employees in the company.

It is believed that some senior executives were among the 20+ employees who were dismissed.

Legal protection for employees

The Equality Act 2010 prohibits harassment related to sex and sexual harassment. Harassment related to sex occurs where:

• A engages in unwanted conduct relating to sex; and
• The conduct has the purpose or effect of either violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

In deciding whether conduct has the effect referred to above, each of the following must be taken into account:

• B’s perception;
• The other circumstances of the case; and
• Whether it is reasonable for the conduct to have that effect.

It should be noted that there is no need for B to have already made it clear to A that their conduct is unwanted for it to constitute harassment.

Sexual harassment occurs where both:

• A engages in unwanted conduct of a sexual nature;
• The conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

As with harassment relating to sex, in deciding whether the conduct has the effect referred to above, each of the following must be taken into account:

• B’s perception;
• The other circumstances of the case;
• Whether it is reasonable for the conduct to have that effect.

If the unlawful harassment involves conduct of a sexual nature, then it is sexual harassment.

According to the Equalities and Human Rights Commission, ‘of a sexual nature’ can cover verbal, non-verbal or physical conduct including unwelcome sexual advances, inappropriate touching, forms of sexual assault, sexual jokes, displaying pornographic photographs or drawings, or sending emails with material of a sexual nature.

Just a single incident can amount to harassment in the eyes of the law.

What happens if an employee complains of sexual harassment?

An employer should first refer to their Equal Opportunity policy or other relevant policy.

Is the employee raising the matter informally or formally? If the employee is raising a formal complaint, they should submit the same in writing with a view that a solution can be achieved. Confidentially of all should be protected.

Generally speaking, it is up to the employee whether the complaint is progressed or not. An employer should note however that they do have a duty to protect all staff and may decide depending on the circumstances to pursue the matter independently.

A formal complaint should be investigated in a confidential and timely manner. It should, where possible, be undertaken by someone with appropriate experience and no prior involvement in the complaint.

Once the investigation is complete, the employee should be informed of the outcome. If the company confirms that the employee has been harassed, the matter should be dealt with under their specific disciplinary procedure as a case of possible misconduct or gross misconduct.

If the employee is not satisfied with the outcome, they should have a right of appeal. 

Liability – Employers beware

An employer is usually vicariously liable for the act of their employees. 

It is therefore essential that, as an employer, you have the relevant policies and procedures in place i.e. an equality policy, that necessary training is provided and that you have an effective and robust grievance procedure. You should also make sure that emails or updates on equality are sent to all staff periodically reminding them of the equality policy and their obligations under the same. 

MORE INFORMATION 

If you require more legal advice on sexual harassment in the workplace, either as an employee or employer, please contact our Employment Department – our team of expert solicitors will be able to assist. Call on 01708 229444 or email us using our contact form.

This article was written by Alexander Pearce, Employment Law Associate at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of June 2017.