The question of whether taking covert pictures of women in the workplace constitutes sexual harassment is complex and nuanced. The case of Sieberer v Apple Retail UK Limited provides a critical lens through which to examine this issue. This case highlights the importance of clear company policies and adequate employee training in preventing and addressing potential harassment situations.
Background and facts
In the case of Sieberer v Apple Retail UK Limited, the claimant, Christoph Sieberer, was dismissed for taking covert photographs of a female colleague, referred to as "M," and sharing them with a co-worker. The photographs were taken without M's knowledge or consent, and the sharing of these images was deemed inappropriate by Apple, leading to Sieberer's dismissal. The tribunal, however, ruled that the dismissal was unfair, as the conduct did not meet the threshold for sexual harassment under the company's policies and the Equality Act 2010.
Tribunal findings
The tribunal found that Apple's harassment policy was vague and did not adequately define what constituted harassment. The policy included examples of harassing behaviour but failed to provide a clear definition, leading to confusion about what actions might be considered harassment. The tribunal noted that not all jokes or electronic communications amount to harassment, even when they involve a protected characteristic. In this case, no employee reported feeling harassed by Sieberer's actions, and the tribunal concluded that there were no reasonable grounds for his dismissal.
Implications for employers
This case underscores the importance of having clear, comprehensive harassment policies and providing regular training to employees. Employers must ensure that their policies are up-to-date and clearly define what constitutes harassment, including specific examples. Training should be provided to help employees understand these definitions and the consequences of violating company policies. Without such measures, employers may find themselves exposed to legal challenges and claims of unfair dismissal.
Legal Framework: Sexual Harassment under the Equality Act 2010
Definition and scope
Under the Equality Act 2010, sexual harassment is defined as unwanted conduct of a sexual nature that has the purpose or effect of violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment. The Act also covers harassment related to sex, which involves unwanted conduct related to a person's sex, even if it is not of a sexual nature. The key factor is the effect of the conduct on the individual, not the intent of the harasser.
Employer responsibilities
Employers have a legal duty to prevent sexual harassment in the workplace. This includes implementing effective anti-harassment policies, providing training, and taking prompt action to address complaints. Employers can be held vicariously liable for harassment committed by their employees if they fail to take reasonable steps to prevent it. This means that employers must be proactive in creating a safe and respectful work environment.
Recent developments
Recent legislative changes, such as the Worker Protection (Amendment of Equality Act 2010) Act, emphasize the proactive duty of employers to prevent sexual harassment. This includes taking reasonable steps to prevent harassment before it occurs, rather than merely responding to incidents after they happen. Employers who fail to comply with these duties may face increased compensation costs in legal claims.
Practical steps for employers
Developing clear policies
Define harassment: Clearly define what constitutes harassment, including specific examples of unacceptable behaviour.
Regular updates: Ensure that policies are regularly reviewed and updated to reflect current laws and best practices.
Communication: Communicate policies clearly to all employees and ensure they understand the expectations and consequences.
Providing training
Comprehensive training: Offer regular training sessions on harassment, diversity, and inclusion.
Tailored content: Tailor training to address specific risks and challenges within the industry or organisation.
Record keeping: Keep records of training sessions and attendance to demonstrate compliance with legal obligations.
Handling complaints
Prompt investigation: Investigate complaints thoroughly and promptly, respecting the confidentiality of all parties involved.
Fair procedures: Follow fair and transparent procedures in line with the Acas Code of Practice on disciplinary and grievance procedures.
Support systems: Provide support to victims of harassment and ensure they feel safe and supported throughout the process.
Additional considerations
The role of context
The context in which actions occur is crucial in determining whether they constitute harassment. In the Sieberer case, the tribunal considered the context of the photographs and the lack of complaints from other employees. This highlights the importance of considering the specific circumstances of each case and not making assumptions based on appearances alone.
The impact of company culture
A company's culture plays a significant role in preventing harassment. Employers should strive to create a culture of respect and zero tolerance for harassment. This involves not only having policies in place but also fostering an environment where employees feel comfortable reporting concerns without fear of retaliation.
While taking covert pictures of women in the workplace may not automatically constitute sexual harassment, it raises significant concerns about privacy and respect. Employers must ensure that their policies are clear and comprehensive, and that employees are adequately trained to understand and adhere to these policies.
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