13 September 2023|
Sex / Gender
Sexual Misconduct / Harassment
The power dynamics of sexual harassment – protecting victims who reject or submit
Sexual harassment in the workplace is widely viewed as unwanted conduct of a sexual nature that is committed by one employee against another and which violates the victim’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them. Viewing sexual harassment through this lens fails to capture the full extent of the power dynamics that operate within employment relationships. For example, where a man commits an act of sexual harassment against a woman, in many situations this will not be the end of the story. Victims of sexual harassment are often subjected to further detrimental treatment for having rejected, or submitted to, the initial act(s) of sexual harassment. This can take many forms, including being held back from a promotion, being excluded from work opportunities, attempts to smear a victim’s reputation, or even dismissal.
This post discusses an underused provision in the Equality Act 2010 (“EqA”) which provides protection against less favourable treatment that arises because a victim of sexual harassment has either rejected or submitted to that harassment. As discussed below, it can be useful to plead this as either a standalone cause of action or alongside other claims, such as unfair dismissal and/or victimisation.
S.26(1) of the EqA states that:
(1) A person (A) harasses another (B) if—
(a) A engages in unwanted conduct related to a relevant protected characteristic, and
(b) the conduct has the purpose or effect of—
(i) violating B’s dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
This subsection covers harassment on the grounds of various protected characteristics, including sex, race and disability.
S.26(2) provides that:
(2) A also harasses B if –
(a) A engages in unwanted conduct of a sexual nature, and
(b) the conduct has the purpose or effect referred to in subsection (1)(b).
S.26(3) of the EqA extends the definition of harassment further:
“(3) A also harasses B if—
(a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex,
(b) the conduct has the purpose or effect referred to in subsection (1)(b), and
(c) because of B’s rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.”
To bring a claim under s.26(3), a worker needs to show that unwanted conduct of a sexual nature (or related to gender reassignment or sex) has taken place. The worker will then need to establish that they have been treated less favourably because they either rejected, or submitted to, such unwanted conduct. The less favourable treatment is not determined by reference to how others would be treated, but is concerned with how the worker would have been treated had they not rejected or submitted to the harassment.
In addition, s.26(3) does not require that the less favourable treatment be meted out by the same individual who carried out the initial act of sexual harassment. For example, where a team leader asks a junior female colleague out to dinner and she declines, the team leader may feel resentful and inform the Head of Division, a close friend, about the rejection (EHRC Employment Code, para 7.15 (p96)). If the Head of Division subsequently refuses to give this female employee a promotion, and the decision was influenced by the fact that she had rejected her team leader’s advances, that could ground a claim against the Head of Division and the company under s.26(3) EqA. In this way, s.26(3) casts a wider net for liability.
Equally, we are frequently instructed by victims of sexual harassment who have reluctantly submitted to the harassment in the hope that the perpetrator will lose interest, or because they feel they have no alternative (particularly if the perpetrator is very senior). S.26(3) recognises that less favourable treatment may also arise after a victim of sexual harassment submits to the sexual advances. It is not uncommon to see those who have submitted to sexual harassment subsequently side-lined or even pushed out of an organisation after the harasser loses interest, or if the victim’s submission to the harassment becomes more widely known.
Overlap with victimisation
The effect of s.26(3) of the EqA is similar to that of s.27 relating to victimisation. Victimisation occurs where a worker does a “protected act” and is then subjected to a detriment. S.27(2) of the EqA defines a “protected act” as follows:
“(a) bringing proceedings under this Act;
(b) giving evidence or information in connection with proceedings under this Act;
(c) doing any other thing for the purposes of or in connection with this Act;
(d) making an allegation (whether or not express) that A or another person has contravened this Act.”
Importantly, a worker must make a claim, allegation or take some other form of positive action, such as raising a grievance, to be afforded protection against victimisation. Prior to the worker’s protected act, the worker does not have protection from victimisation (the detriments need to be meted out because of the protected act), unless the perpetrator meted out the detriments in the (potentially mistaken) belief that the worker had done or may do a protected act. Therefore, any detriments meted out prior to a protected act are unlikely to sound in damages under this cause of action.
Making a complaint of sexual harassment will be a protected act, such that if the complainant is subjected to a detriment for having made a complaint, this will constitute victimisation. By contrast, a claim under s.26(3) does not require the victim of sexual harassment to have already complained that they have been sexually harassed.
So long as the less favourable treatment is causally connected to a claimant having rejected or submitted to the initial act of harassment, the claimant will be able to claim for any losses that flow from the less favourable treatment and also for injury to feelings.
This occurred in the case of AA Solicitors Ltd (t/a AA Solicitors) v Majid EAT 0217/15, where a sole legal practitioner subjected a female trainee lawyer to numerous acts of sexual harassment. When the trainee declined the sole practitioner’s sexual advances, he dismissed her following a redundancy process. Relying on s.26(3) of the EqA, the Claimant successfully argued that she had been dismissed because she had rejected his advances. The EAT noted (at para 31): “The feelings of hurt and humiliation at losing a job in such demeaning circumstances should not be downplayed.” The Claimant’s award of compensation for injury to feelings in respect of her dismissal was upheld, as were her other awards, including compensation for her loss of earnings and aggravated damages. The Claimant would not have been able to claim an award for injury to feelings had she only claimed unfair dismissal.
All sexual harassment claims must be brought three months less a day after the “act to which the complaint relates” (s.123(1)(a) EqA). There may be instances where a claimant is out of time to bring a claim of sexual harassment under s.26(1) or (2) (because the primary incidents of sexual harassment occurred more than 3 months ago) but where the claimant has, within the last three months, been less favourably treated for rejection of, or submission to, the primary act of harassment, such that their s.26(3) claim remains in time.
S.26(3) is a useful, though often underused, provision in the EqA. Where a worker is subjected to less favourable treatment either by the initial perpetrator or another colleague, because the worker rejected or submitted to the initial act of sexual harassment, a claim under s.26(3) EqA should be considered. As discussed, unlike claims for victimisation, a claimant does not need to have complained about the sexual harassment before they can issue a claim under s.26(3). For example, the Claimant in AA Solicitors Ltd (t/a AA Solicitors) does not appear to have complained of sexual harassment by the sole practitioner before she brought a s.26(3) claim arising from her dismissal. Indeed, in our experience many victims of sexual harassment suffer in silence, sometimes for years, and only take action once they are, for example, unfairly subjected to disciplinary or performance procedures, overlooked for a promotion or pay rise, or selected for redundancy. If such treatment can be shown to be because of their rejection of or submission to sexual harassment, they may have redress under s.26. Of course, this causative link is often challenging to prove.
Given that s.26(3) does not require a claimant to make a complaint, and that often victims of sexual harassment do not report the initial act(s) of sexual harassment, where a victim is subsequently penalised for rejecting, or submitting to, the initial act(s), pleading a claim under s.26(3) can be an effective way to seek redress, especially if the initial harassment has become time-barred in the meantime.
Farore Law is a leading boutique law firm that has a wealth of experience in advising the victims of sexual harassment to seek justice. We are well placed to provide appropriate advice regarding making an allegation through your company’s internal grievance process, seeking a settlement agreement and commencing litigation. Our lawyers frequently advise senior executives and other individuals who have been subjected to sexual harassment (or have been accused of committing sexual harassment) and recognise the importance of anonymity and reputation management.
Please contact us if you require legal advice after being subjected to sexual harassment and/or less favourable treatment because you have either submitted to, or rejected, sexual harassment.