Is this employee being sexually harassed? Matthew Whelan and Esther Smith advise.
The question: Is this harassment?
I have an issue with one of the junior managers within my branch. Although he is not my direct line manager I have to report to him for technical decision making – I am effectively one of his deputies in the branch and therefore we should enjoy a close working relationship, however, he seems to want it closer than appropriate!
The 1st instance was 18 months ago where we were on a client meeting (jolly) where alcohol was freely flowing and his hands began to wander. I slapped him away but wasn’t in a position to tell him loudly to stop as was in front of several customers . Another member of staff walked me back to the train station and by the time I got there I had several text messages and missed calls effectively asking me "Do you not want to see me" etc – however nothing lewd.
He is married with three small children. The next day he did apologise and was very sheepish. All the management team have staff numbers in their phones for disaster recovery planning hence how he has my number.
This has re-occurred on several occasions and some colleagues have commented on it (unfortunately drink has always been involved). I’ve never raised it with anyone senior as I didn’t believe it was a big issue or that it would be taken seriously by the management team.
I’ve also noticed in the office that he generally doesn’t look at my face when he talking to me, it’s normally my chest – I’ve felt I have had to change my wardrobe to wear clothing that provides more coverage, i.e. polonecks.
I had last week off as holiday and he has this week off as its half term and he needs to look after his children. I was horrified to receive a text from him at 8pm on Saturday (end of my holiday, beginning of his) telling me he ‘really really missed me’ whilst I’ve been off and he knows he shouldn’t be texting me and to tell him if I want him to stop."
Given that he is senior surely he is abusing his position but now he has put the onus on me to stop it. There have been no subsequent texts but I am very uncomfortable about going to work on Monday when he returns to the office. I have talked it through confidentially with two close friends from work but neither agree on what to do – one believes I should keep quiet, the other thinks I should tell my (and his) line manager who is also the Branch manager. I’m not confident that the matter would be addressed correctly and feel that it would be brushed under the carpet or a hand slapping, which I don’t believe addresses the issue. We don’t have onsite HR to discuss this and I have no relationship with our HR advisor in branch.
I don’t know what this falls under – it isn’t crude, overt sexual harassment but it makes me feel uncomfortable and less able to do my job. I am currently looking for another position (I had an interview during my week off but didn’t get the position) – otherwise I would have resigned and mentioned it then.
Should I speak to someone or wait until I hopefully find another job and then tell my manager that this has caused part of the reason for me resigning?
Matthew Whelan, solicitor, Speechly Bircham
There is certainly an argument that what you describe in your email would constitute harassment under the Sex Discrimination Act 1975, even though it is not possible to be certain as there are various components to the definition of harassment and whether it applies depends on the facts. I suggest you keep the texts as these will be good evidence.
I can see there are some arguments your line manager could use in his defence to any such claim (even though these do not excuse this behaviour). For example, he could argue that the attention was not “unwanted” because he had given you the opportunity to tell him to stop. I appreciate of course from your perspective it is unfair that he should put the onus on you and his argument may well not succeed. Also some of the acts happened some time ago.
You could also have an argument under the Protection from Harassment Act 1997 (although this may be more difficult to prove) and you may want to consider recourse under this by taking legal advice, particularly if his conduct becomes more serious.
As to how you deal with the issue, it seems to me that, whatever the legal position, you need to do something as it is serious conduct which is having a negative impact on you and therefore needs to stop. At the least you should tell him that you want him to stop sending you texts. That way there can be no doubt that his conduct is unwanted. It is a personal decision as to whether or not you tell your employer although it seems sensible to do so, particularly if this conduct does not stop after you have told him, as it may be that your employer is willing to help you (and indeed would be under a legal obligation to do so).
I appreciate of course that there is a risk that they will side with him, although you do not know this until you have tried. If you were treated detrimentally because you have raised this allegation then there is legal protection against this, if you can show that this is the reason for your treatment.
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Esther Smith, partner, Thomas Eggar
The situation you describe could very well amount to harassment as it is unwanted conduct, which whilst not overtly sexual, is being directed at you due to your gender.
I agree that you should not have to put up with this behaviour. The one thing that you don’t mention in your e-mail is what response, if any, you have provided to these text messages. It seems odd, particularly in light of the content of his last message, that he would continue to contact you in this way if he did not get any response from the earlier messages.
Personally I would start by telling him very clearly that you want this kind of contact to stop and that if it doesn’t stop then you will have no choice but to raise a grievance internally about it, which presumably he won’t want. If this does not put an end to things, then raise the grievance. If his treatment of you changes as a result of you delivering this message then again your route is to raise a grievance.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar