Sexual Harassment At Work — A Legal View
| DOI | https://doi.org/10.1108/eb057345 |
| Date | 01 January 1984 |
| Published date | 01 January 1984 |
| Pages | 11-11 |
| Author | David Martin |
| Subject Matter | Economics,Information & knowledge management,Management science & operations |
Sexual Harassment
At Work -
A Legal View
by David Martin
Barrister
The recent report by the TUC's Women's Advisory Com-
mittee,
"Sexual Harassment at Work", raises a number of
legal issues of importance to management. The report in-
dicates that this problem is widespread throughout in-
dustry and states:
"Individual cases include a journalist who dreaded go-
ing in for the evening shift because of constant un-
wanted touching and being stopped and touched in the
locker area; young women who had to drop out of an
apprentice scheme for electricians because of the cons-
tant touching, ribbing, innuendos and sex talk among
the men; and office workers whose bosses suggest they
might like to stay behind after work or spend a weekend
with them."
It then suggests that victims should keep a record of these
incidents and report them to their union representative,
further adding that the harasser should be warned that
legal action may be taken against him.
What legal action may be taken is not specified, but this is
not surprising because this is a vague and uncertain area of
law. However, the report states that the type of behaviour
which will not be tolerated in future includes:
"leering,
ridicule, embarrassing remarks or jokes,
unwelcome comments about dress or appearance,
deliberate abuse, the offensive use of pin-ups, por-
nographic pictures, repeated, unwanted physical
con-
tacts,
demands for sexual favours and physical assaults
on workers."
Where physical contact takes place or where there is a
threat of physical contact the law is quite clear, the victim
being able to bring a prosecution or commence a civil ac-
tion in tort for damages. If there has been a threat of
violence and the victim has been put in immediate fear for
her personal safety damages may be claimed for assault;
and,
should the threat be carried out, further action lies for
battery, which in law is the intentional or negligent
touching of one person by another. As well as being torts,
which are wrongs against the person, assault and battery
are criminal offences. Quite recently an apprentice, work-
ing in a factory in Sheffield, who sneaked up behind a
typist and pinched her bottom was fined by the
Magistrates' Court for indecent assault.
Where this type of incident takes place, the victim must
decide whether to prosecute or bring a civil action. She
cannot do
both.
The aim of a prosecution is to secure a
conviction and punish the offender for his behaviour;
whereas the purpose of a civil action is to compensate the
victim for the injury sustained. This need not be a serious
physical injury, for in addition to awarding damages for
serious bodily harm the courts have power to award com-
pensation for loss of dignity suffered by the victim. The
slightest touch constitutes battery, and where there is
con-
tact with a sensitive part of the body, which may only
cause slight or transient
pain,
but which gives rise to em-
barrassment or humiliation the courts will award substan-
tial damages even though there has been no physical in-
jury.
This is because the torts of assault and battery protect in-
dividuals from both serious physical injury and loss of per-
sonal dignity. Even an unwanted kiss or a playful slap
amounts to battery and, where these cause embarrass-
ment, damages will be awarded.
Although the law adequately protects the employee from
physical abuse, sexual harassment in its other forms is not
recognised as a separate tort, even though, as the report
states, stress at work which it causes has been "linked to
depression and physical illness". However, as Lord Atkin
categories of negligence are never closed", and, as it has
been held that it is the duty of an employer to provide a
competent staff, he being guilty of negligence if he fails to
protect employees from physical injury resulting from
practical jokes played on them by other workers, it would
be open to the court, in a test case, to say that where
physical or mental illness was caused by sexual harass-
ment, of which he was aware, the employer owed a duty
of care to take steps to prevent this happening.
The duty of care in negligence was defined in Donoghue v
Stevenson as being the duty of care owed to a
"neighbour", and Lord Atkin asked the rhetorical ques-
tion:
"Who
then,
in law, is my neighbour?" — to which he
answered:
"Persons who are so closely and directly af-
fected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing
my mind to the acts or omissions which are called in ques-
tion".
And subsequently in Hudson v Ridge Manufactur-
ing Co. (1957) 2 QB 347 (a personal injuries case) the judge
said:
". . .(U)pon principle it seems to me that if, in fact, a
fellow workman . . . by his habitual conduct, is likely to
prove a source of danger to his fellow employees, a duty
lies fairly and squarely on the employers to remove that
source of danger". Thus it would only be a short step,
from the position as it stands at the moment, for another
court to say:
"That where an employee is the victim of sexual harass-
ment which is of such a nature and degree as to be likely
to cause physical or mental illness, and the employer
being aware of this situation fails to take measures to
prevent the behaviour continuing, he is in breach of the
duty of care which he owes to the victim, and is guilty
of negligence".
IMDS • JANUARY/FEBRUARY • 1984 11
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