Introduction
A claim for sexual harassment in the Employment Tribunal is primarily governed by the Equality Act 2010. This statute provides the main legal framework for all forms of discrimination, harassment and victimisation in England and Wales. It defines what constitutes sexual harassment and establishes who can be held liable for it. The statute is not applied in a vacuum; its provisions are interpreted and clarified by case law from the Employment Tribunal, the Employment Appeal Tribunal (EAT), and higher courts. This response will state the key legislative provisions and the relevant case law that a claimant would rely upon when bringing a sexual harassment claim.
The Equality Act 2010
The principal legislation for a sexual harassment claim is the Equality Act 2010 (EqA 2010). The specific definition of harassment is found in Section 26. This section outlines three distinct forms of harassment, two of which are particularly relevant to sexual harassment claims.
The first form, under Section 26(1), defines harassment as engaging in unwanted conduct related to sex which has the purpose or effect of either violating the claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. For a claim to succeed under this section, the claimant must show that the conduct was both unwanted and related to their sex. The focus is on the effect of the conduct, which is assessed from both the claimant's subjective viewpoint and an objective standpoint, considering whether it was reasonable for the conduct to have that effect (s.26(4)).
The second, and more direct, form is found in Section 26(2). This defines sexual harassment as engaging in unwanted conduct of a sexual nature. Similar to Section 26(1), this conduct must have the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Conduct "of a sexual nature" can include sexual comments, jokes, intrusive questions about a person's private life, displaying pornographic images, or physical contact (Cabrelli, 2020).
A third type of harassment is outlined in Section 26(3), where a person is treated less favourably because they have either submitted to or rejected unwanted conduct of a sexual nature, or conduct related to sex.
Illustrative Case Law
The Employment Tribunals and courts have provided important guidance on how the statutory definitions are to be interpreted. In Insitu Cleaning Co Ltd v Heads [2009] IRLR 4, the EAT confirmed that a single, one-off incident can be serious enough to constitute harassment. In this case, a manager’s remark to a female employee, "hiya, big tits", was held to be sufficient. This case also highlights the importance of the word "unwanted"; the tribunal must be satisfied that the claimant did not welcome or invite the conduct.
The case of Richmond Pharmacology v Dhaliwal [2009] IRLR 336 clarified the meaning of "violating dignity". The EAT held that dignity is not a necessary element of the 'intimidating, hostile…' definition, but is a significant concept in its own right. It noted that 'dignity is a matter of respecting a person’s identity and their sense of self-worth'. Conduct that fails to do this can therefore be unlawful.
The question of whether conduct is "of a sexual nature" is often a question of fact for the tribunal. In Moonsar v Fiveways Express Transport Ltd UKEAT/0485/13, the EAT upheld a tribunal’s decision that a manager's comment "you have a problem with my people" to a claimant of Indian origin, followed by "are you on the game?", was conduct of a sexual nature. This demonstrates that the context and interpretation of words are crucial.
Liability for Sexual Harassment
Under the EqA 2010, liability for sexual harassment is not limited to the individual perpetrator. Section 109 establishes that an employer is vicariously liable for acts of harassment committed by an employee in the course of their employment. However, an employer has a defence under Section 109(4) if it can demonstrate that it took all reasonable steps to prevent the employee from carrying out the harassment. This might include having clear anti-harassment policies and providing regular staff training. In addition to employer liability, Section 110 of the Act also allows for the individual who carried out the harassment to be held personally liable.
Conclusion
In summary, the legal basis for a sexual harassment claim in the Employment Tribunal is founded upon the Equality Act 2010, specifically Section 26. This statutory framework defines what constitutes unlawful harassment and is supported by a body of case law that provides interpretation on key concepts such as "unwanted", "violating dignity", and when an employer can be held responsible. Therefore, a successful claim will depend on applying these statutory rules and judicial precedents to the specific facts of the case.
References
Cabrelli, D. (2020) Employment Law in Context: Text and Materials. 4th edn. Oxford University Press.
Insitu Cleaning Co Ltd v Heads [2009] IRLR 4
Moonsar v Fiveways Express Transport Ltd UKEAT/0485/13
Richmond Pharmacology v Dhaliwal [2009] IRLR 336
Legislation
Equality Act 2010
