Sexual Harassment continued

I mentioned last week that sexual harassment is unwanted conduct of a personal nature, or other conduct based on sex, affecting the dignity of women and men at work.

I also spelled out that one man’s playful flirting may be unwelcome and demeaning harassment to his female colleague and that the Courts will tend to protect the victim and take her side.

What this means, in practice, is well illustrated by the recent case of Moonsar -v- Fiveways Express Transport Ltd. Mrs Moonsar was employed as a data entry clerk for four months on a part time basis.

She shared an office with male colleagues. On three occasions the men downloaded pornography onto computer screens in the room where they all worked. The pictures were not circulated to Mrs Moonsar but she was aware of what was happening. She did not complain.

The Employment Appeal Tribunal decided that the behaviour of the men clearly had the potential effect of causing an affront to a female employee working in a close environment and as such would be regarded as degrading or offensive to a woman. This amounted to sexual harassment, which is sexual discrimination.

Men need to understand that having no intention to harass anybody is irrelevant.

By the way, downloading pornography onto your computer at work is a quick way of collecting your P45. If a friend sends you pornography or dirty jokes by e-mail do not pass it on to other people; delete it immediately. You would be well advised to regard your computer use as being in the public domain. If what you are doing would (or should) embarrass you, don’t do it.

Frequently people accused of harassment tell me that “she won’t be able to prove anything”. It is important to understand where the burden of proof lies in sexual harassment and, for that matter, in all discrimination cases.

Let’s start with a criminal case – say I’m accused of speeding. If I plead “not guilty” the Crown Prosecution Service has to establish beyond all reasonable doubt that I was speeding if I am to be convicted of that offence.

In discrimination cases, as soon as the Claimant establishes facts which could lead the Tribunal to find that there was discrimination, the burden of proof shifts to the other side to prove that in fact there was no discrimination. This means that Claimants do not need to prove anything, they just need to produce evidence which looks as if it could be discrimination, the employer (normally) then has to prove that it was not.

Published 27/09/2006.