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Legal Eagle

Miscellaneous

Q: Sexual harassment

How does one prove a case of sexual harassment at work?

A: There is no statutory definition of sexual harassment but it has been defined in one leading case as "unwanted conduct of it sexual nature, or other conduct based on sex, affecting the dignity of women and men at work". It is thus very wide-ranging in scope. It is this form of sexual discrimination which is prohibited by the Sexual Discrimination Act 1975. Sexual discrimination is defined by the Act as "any discrimination on the basis of a person's sex", subject to certain exceptions laid down in the Act. Applications for compensation are made to an industrial tribunal.

The European Community (who else?) has produced a Recommendation and Code of Practice on Sexual Harassment (CR No. 92113 I/EC, dated November 27, 1991) which examines the subject in depth and contains strictures concerning employers' responsibilities and complaints procedures. If you have a problem of this nature you may find it helpful to obtain a copy as a possible weapon to invoke against the other party or parties concerned. A copy left conspicuously on the offending person's desk may be a pointed way of bringing it to their attention with possibly dramatic effect.

Sexual harassment may occur against a person of the same sex, and may arise out of a single incident, if serious enough, or out of a series of persistent but individually relatively minor incidents.

As to the methods of proof, there are, of course, the traditional methods of oral testimony from witnesses, documentary evidence (if any such exists or can be obtained), tape recording and confession. Also, hearsay evidence is admissible before all industrial tribunal which is a considerable advantage.

The burden of proof is on the complainant but, if he or she can provide some superficial evidence then, depending on the nature of it, the burden may shift to the employer to show there is an innocent explanation or excuse. If the sexual harassment is by another employee, both that employee and the employer may he made liable, although it is a defence for the employer to show that he had taken reasonable steps to prevent the harassment and had not encouraged it (hence the relevance of the EC Code).

There is now no limit on the amount of damages for conduct of this kind which may be awarded by a tribunal. Damages are assessed on a subjective basis and include compensation for injury to feelings, but over-sensitivity will be discounted.

The other party may claim as an excuse that there was reason to believe the conduct complained of would not be unwelcome or was encouraged, so the sooner YOU make your objection clear the better.

First published July 1997