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The Equality Act by Alan Gough

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Sexual harassment is the hot topic of the moment, with two things happening over the last few months to bring this problem to the fore.

The explosive allegations against Weinstein have resulted in sexual harassment in the workplace being very much under the spotlight. Many older readers will remember the office environment of the 70s and 80s where sexual harassment was in most instances accepted as the norm or, if not, was tolerated. Things today are far from what they used to be as I suspect Harvey is about to find out.

The second event has been the passing of the Equality Act in the Isle of Man. The Act recognises the problem and provides specific provision to protect workers from a range of unacceptable behaviours, sexual harassment included.

Employers should always strive to provide a safe working environment, condemning any kind of harassment or intimidation in the workplace and encouraging respect at all levels.
Proactivity is key when it comes to promoting awareness of worker’s rights and in meeting employer responsibilities.

Organisations would be well advised to have the most stringent provisions written into their policies and contracts of employment to protect both their workers and themselves, especially those dealing specifically with sexual harassment. In simple terms it should not be tolerated in the workplace, and neither should retaliation against anyone who complains of it.

Of course, all new legislation creates problems of interpretation particularly legislation as broad and sweeping as the Equality Act. So there needs to be a better understanding of what constitutes sexual harassment.

The wording of the Act is broad and includes both verbal and physical harassment. It can present itself as any unwanted conduct of a sexual nature which has the purpose or effect of violating the recipient’s dignity or otherwise creating an intimidating hostile degrading humiliating or offensive environment.

The conduct does not have to be sustained. A one-off incident that makes someone feel uncomfortable can amount to harassment. Employers should educate their staff and make it very clear what is and what is not acceptable behaviour in the workplace. Staff should know where they stand. Proper policies, if implemented, should protect potential victims and also protect the employer against being sued for not providing a safe workplace environment.

A particular grey area is the fact that sexual harassment can be readily identified in some cases, but less so in others. When it comes to balancing between an objective assessment of the conduct in question and a subjective one (whether the complainant found the conduct intimidating or not) the courts in England have taken the view that the test is subjective but the effect the behaviour had on the victim should also be taken into consideration.

So, what happens when harassment has occurred in the workplace? Employers need to make clear procedures for complaints in a sexual harassment case and need to recognise that sometimes the perpetrator will be high up the management chain.

It also has to be recognised that victims are often vulnerable and are loath to raise complaints. Indeed, victims have been criticised for not standing up for themselves and it seems to be only when Harvey's indiscretions were made public that many of the victims were emboldened enough to come forward.

Without a complaint there is not much that the employer can do and not much protection can be afforded in practical terms by the law.

Victims of harassment will often find themselves in an invidious position. They may feel intimidated at the thought of taking the matter to management and instead opt for the police. Nevertheless, once a report to the police is made the employer will no doubt be brought into it and statements will be taken. There is also the ogre of unwanted publicity for both the victim and the employer, let alone the alleged perpetrator.

It will be interesting to see how the Equality Act is applied as regards sexual harassment. It has only just come into force and has not yet been tested before tribunals and the courts but employers need to be prepared for a robust application of the law.

Of course, it is not always easy to force high-minded principles on the public by way of a legislation. The Equality Act is as broad and sweeping as they come. There can be unforeseen and undesirable consequences. In England the Crown Prosecution Service is under fire from judges for sending inexperienced barristers to prosecute serious crime, sometimes with disastrous consequences. The CPS has denied giving big cases to relatively junior and inexperienced barristers for fear of being accused of breaching the Equality Act.

Nevertheless, it is a step in the right direction and if the Equality Act and current media storm brings us closer to tackling sexual harassment in the workplace, it can be considered a small triumph.