SEXUAL HARASSMENT AND WHISTLEBLOWING
What is sexual harassment?
Sexual harassment is unwanted behaviour of a sexual nature which violates your dignity, makes you feel intimidated, degraded or humiliated, or creates a hostile or offensive environment. You don’t need to have previously objected to someone’s behaviour for it to be considered unwanted.
Anyone can be a victim, irrespective of their gender or sexual orientation.
Sexual harassment can be carried out by anyone that you are in contact with in the course of your employment, including:
At work, employers have a duty of care or responsibility to look after the wellbeing of their employees. Under the Equality Act 2010, employers are liable for acts of sexual harassment by one employee towards another unless they have taken all reasonable steps to prevent it.
This includes but is not limited to:
- flirting or making sexual remarks about someone’s body, clothing or appearance
- sexually offensive jokes
- unwelcome sexual advances and touching someone against their will
- asking questions about someone’s sex life
- sharing pornographic or sexual images
What about workplace “banter”?
Whilst someone might argue that it is ‘office banter,’ a joke, or accepted in the culture of the organisation, it is still sexual harassment if:
- the behaviour is of a sexual nature
- it is unwanted
- it violates your dignity or creates a hostile environment for you
What should I do if I am being sexually harassed at work?
If you have experienced sexual harassment at work, you can make a complaint to your employer through an informal or formal grievance. Your employer should treat your complaint seriously and with sensitivity.
It also a good idea to make a note of exactly what happened and keep notes throughout the process of making your complaint. This can prove useful if it is distressing to talk about what happened, as well as being a helpful record if your complaint is not properly dealt with.
ACAS provides some useful guidance on what to do if you are sexually harassed at work here.
If you are sexually harassed, you should seek some legal advice and support. You may wish to contact your Trade Union representative (if you are a member). Below are some specialist sources of advice and support on sexual harassment. For a list of services offering general employment advice see here.
Contact for free employment law advice for women in England and Wales who have experienced sexual harassment at work.
Call: 020 7490 0152
Monday 3pm – 5pm and 6 – 8pm, Tuesday and Wednesday 6 – 8pm (except Bank Holidays)
Contact for their Sexual Harassment Legal Service, providing information, advice, and representation to women in Scotland who have encountered sexual harassment in the workplace, online and in further education.
Call: 08088 010 789
Wednesday 10 am – 1pm and Thursday 1:30pm – 4:30pm
Contact for advice on discrimination issues and advice on Equality Act 2010
Call: 0808 800 0082
Monday – Friday: 9am – 7pm
Saturday: 10am – 2pm
Remember – if you want to bring a claim to Employment Tribunal for sexual harassment, there are strict time limits to do so (you must lodge your claim with ACAS within 3 months of the incident). You should therefore contact one of the above organisations as soon as possible.
When should I whistleblow about sexual harassment?
There may be some circumstances where a grievance is not the most effective route to deal with sexual harassment in your workplace and you may consider raising this as a whistleblowing concern.
Whistleblowing requires there to be a public interest element to your concerns. Generally, this means that the concerns do not just impact you. If you are the only person who is being sexually harassed, then you should assert your own rights through employment and equality law in a grievance process. Please see the above organisations under “What should I do if I am being sexually harassed at work?” for advice.
You may wish to consider whistleblowing as an option if:
- you reasonably believe that you are not the only person impacted by or at risk of the harassment;
- there are a number of other people who have also been sexually harassed;
- you are not directly impacted by the sexual harassment but you are a witness to it, or
- there is a culture or environment where sexual harassment occurs and is permitted in the workplace. This suggests that there could be a wider public interest issue, which may be missed in a grievance process.
You may also be able to demonstrate a public interest for whistleblowing if the harassment is very serious, criminal, or the harasser is a senior, powerful or very influential person.
Can I raise sexual harassment to a regulator?
There may be some circumstances where you can raise your concerns with your relevant regulator.
Some regulators, such as the Financial Conduct Authority (FCA) have expanded their remit to include not only industry-specific wrongdoing, but also workplace culture. Concerns about the failure of organisations to tackle complaints of sexual harassment can be indicative of wider organisational and cultural issues and may be of interest to a regulator.
It is often advisable to try to deal with concerns internally, with your employer, before going externally. See our advice page on “What to do if your concerns are unresolved” for information on approaching a regulator.
If you are considering approaching a regulator with your concerns about sexual harassment, please contact our advice line first to discuss the best approach and whether you are likely to be protected under the Public Interest Disclosure Act 1998 (the law that protects whistleblowers).
Signed an NDA?
The use of non-disclosure agreements or confidentiality clauses (sometimes called “gagging clauses”) are commonly used to stop information from being disclosed. Often, they can service a useful and legitimate role in employment contracts and settlement agreements to protect sensitive information. However, there is increasing evidence that these gagging clauses are being used unethically by some employers to intimidate whistleblowers, silence victims of harassment and discrimination, and conceal wrongdoing in the workplace. Post #MeToo, it has been revealed that they are commonly used in sexual harassment cases.
However, there are limitations to what can legally be ‘gagged’ by NDAs, which workers are often unaware of. The current law on whistleblowing states that no agreement can prevent a worker from whistleblowing, or “making a protected disclosure” (s43J Public Interest Disclosure Act, PIDA, 1998).
If you have signed an NDA or a confidentiality clause but you still want to raise concerns about sexual harassment, you should contact our advice line first to discuss your options.