'What is sexual harassment?

As sexual harassment scandals fill the airwaves the traditional definitional question emerges: but what IS sexual harassment?

There is a legal definition. You’ll find it section 26(2) of the Equality Act 2010. Let me break it down ...

First, there has to be conduct of a “sexual nature”. What counts? Check out Para 7.13 of the Code of Practice on Employment (2011) ...

“verbal, non-verbal or physical conduct including unwelcome sexual advances, touching, forms of sexual assault, sexual jokes ...displaying pornographic photographs or drawings or sending emails with material of a sexual nature” ...

 So could it cover feeling a journalist’s knees under the table? Oh yes, absolutely.

Second, the conduct must be *”unwanted”* conduct. If the journo is happy to have her knees touched, it’s not harassment.  But there’s more, the conduct must have the purpose OR the effect of: 1. Violating the victim’s dignity; or 2. creating an intimidating, hostile, degrading, humiliating or offensive environment for them ..  Note, purpose OR effect. So if you are trying to violate their dignity you don’t need to succeed to be in trouble.

Equally, if you create a hostile environment you don’t escape merely because that was not your purpose.

When considering whether the conduct has had one of the two effects mentioned above, the tribunal must look at 3 things: 1. the victim’s perception; 2. the other circs of the case; and 3. whether it is reasonable for the conduct to have the effect.  So if someone is irrationally over-sensitive that will not count but it's the victim’s perception and not the harasser’s that counts

So, for instance, the fact that you can’t see why a journo would object to having their knee squeezed is not important.  If it is something a reasonable person could find intimidating or degrading, for eg, that may well do.  Also, victim’s perceptions may reasonably differ, so the fact that one finds it trivial does not mean all will.

 The standard is not that of the hardiest victim. 

Harassment “It was different 15 to 20 years ago”.

I don’t understand this argument.   Assume that the statement is true. So what? A lot of social attitudes have changed in the last 15 - 20 years.  Have these people been on the moon? Did they not notice the huge social change they claim has occurred?  However, I’ve been dealing with sexual harassment in the workplace cases for some 26 years. I don’t think things are radically different now

 The current legal definition is an evolution of the one contained in the EU Commission recommendation on sexual harassment from 1991. It was quickly adopted by UK tribunals and applied in harassment cases (which were then treated as a species of direct discrimination).  There might be cases that would be unlawful under the present test that would not have been then, but I struggle to think of one.  Workplaces were not Carry On fantasies with women giggling uncontrollably at a stream of lewd double entendres.

 Being the subject of humiliating or degrading treatment was no less destructive of people’s dignity in 1990 than it is now.

We should not confuse inability effectively to challenge behaviour with tacit approval.'

Sean's Twitter feed is @seanjonesqc