Compliments of the boss

Following the EC Code of Practice on sexual harassment could reduce levels of sickness and absenteeism, as Alison Clarke discovers

Sexual harassment is a new name for an old problem that was finally recognised in 1986, when a tribunal decided that it amounted to unlawful sex discrimination. Since then, complaints have more than doubled, as have applications to Industrial Tribunals. The Equal Opportunities Commission puts this down to a greater awareness of the issue, rather than an increase in the number of incidents.

The vast majority of complaints are brought by women against men, a statistic confirmed by Women Against Sexual Harassment which estimates that in 1995, out of about 200 clients, only a handful were men. But there is, apparently, an increasing number of same-sex complaints.

One such case was that of Joanna Poole, who complained to a tribunal that her boss at BUPA, Christine Butland, made repeated comments about her body and questioned her endlessly about her sexual background. She alleged that Mrs Butland commented on the size of her breasts, and once "wobbled" her own breasts in front of her.

More than anything, this case highlighted that what is light-hearted banter to one woman can feel like verbal battery to another. Ms Poole's female supervisor, for instance, insisted that any discussions about sex were light-hearted, and that the comments made by Mrs Butland were "just compliments, really". At least one female journalist has expressed surprise at Ms Poole's complaints, arguing that it is common for women at work to exchange intimate, emotional details of their lives.

That is not, however, the way in which the courts look at things. According to Sara Leslie, a solicitor specialising in discrimination law, the case "has got to be looked at from the applicant's point of view. She can be cross-examined by the employer as to her sensitivity to the issue, but the subjective approach is now generally accepted by tribunals."

Because there is no specific law against sexual harassment, the normal route is to bring a claim under the Sex Discrimination Act. To satisfy a tribunal, the woman has to show first that she was treated less favourably than a man, and then that she has suffered some "detriment" as a result. Surprisingly, there does not have to be a sexual motive for the harassment, but the applicant has to prove there was some animosity because of her gender.

Alternative remedies, though less common, include claims for constructive dismissal, prosecution for assault under criminal law, breach of contract, or even a claim for personal injury, such as an illness or disease triggered by the harassment.

One of the biggest obstacles to proving an allegation of sexual harassment is the defence that the harasser was not acting in the "course of his employment". In other words, that the employer is not liable for the actions of his employee. Sara Leslie says that "this is the major argument which employers now use and has become the main battleground in sexual harassment cases".

But even if the employer loses this argument, he can still defend the claim if he can show that he took "such steps as were reasonably practicable" to prevent the harassment. The European Commission Code of Practice makes a number of recommendations as to how employers should deal with allegations of sexual harassment. It suggests that a policy statement is drawn up, outlining behaviour which is unacceptable at work, which should then be brought to the attention of employees. There should be clear procedures to follow in the event of a complaint, and managers should be trained in how to handle investigations.

According to a spokesperson for Women Against Sexual Harassment, "employers think that following the Code will lead to further claims. In fact, what it can do is to reduce levels of sickness and absenteeism because women know that they can rely on the employer to respond quickly and sensitively to a complaint."

Although the Code is not legally binding, it has been widely used by tribunals as a hallmark of good practice. But in July this year, the European Commission announced that it had not "led to sufficient measures being adopted by the Member States" to reduce levels of sexual harassment. The Commission was therefore considering the introduction of a common plan, which would be binding on each Member State. Quite what this will mean in practice is not yet clear.

For those applicants who finally succeed in proving their case - about 45 per cent - there is no ceiling to the amount of damages that can be awarded. A record sum of pounds 40,000 has just been made by a Scottish tribunal, of which pounds 12,000 was for injury to feelings. Compensation for hurt feelings is invariably made in sexual harassment cases, but the average is more like pounds 1,500 to pounds 2,000.

What remains to be established in this country is the concept of "environmental harassment". This trail has already been blazed in the USA with a landmark decision in 1991 that a display of posters of nude women in the workplace constituted harassment. A similar case in 1994 did not succeed here, on the grounds that a hypothetical man might also have found the pictures offensive. In other words, the applicant had not suffered a detriment because of her sex, as required under the Act.

That leaves the law on sexual harassment at a bit of an impasse, unless the common plan proposed by the European Commission has the effect of kickstarting the member states into further activity. Although some employers will cringe at the thought of more legislation, it must make good economic sense in the long term to care for the health and safety of their workforce.

The writer is legal officer with the MSF union.