Putting sexual harassment under the spotlight by Tania Goodman - first published in Construction Manager in January 2018

08 Jan 2018

It is well known within the construction industry that sexism exists and that being female and/or LGBT can put you at a significant disadvantage in a number of ways. The less transparent forms of discrimination include lack of career progression and disparity of pay. The more noticeable manifestation is sexual harassment, a topic that has been highlighted in recent months in Hollywood and then Westminster.

In light of a recent survey, conducted by the recruiter Hayes, that found 73% of women in engineering within construction had experienced discrimination, harassment or victimisation and only 7% of LGBT workers would recommend the industry to prospective colleagues, there is justifiable pressure on the sector to significantly adjust its cultural attitudes and thereby improve its image and appeal to a more diverse and talented workforce.

So, how can construction companies tackle this issue and what practical steps can be taken to try and stop it from happening in the first place and in dealing with the repercussions that follow when it does?

The definition of sexual harassment is set out in the 2010 Equality Act, and is unwanted behaviour which violates dignity, makes the employee feel intimidated or humiliated and creates a hostile or offensive environment. It includes sexual comments/jokes/banter about sexual orientation, sexual advances and touching, displaying pictures/photos of a sexual nature and sending messages with sexual or pornographic content. The Act says employers have a duty to stop colleagues harassing each other at work and this includes related social events such as drinks in the pub or at the office party.

Good practice

Construction companies should have a clearly stated policy on their zero-tolerance approach to this sort of misconduct and this should be highlighted to employees during their induction and through equality and diversity training during their employment. It would be prudent to ask them to sign and date a document confirming that they have read and understood the policy as this could provide the employer with a statutory defence in the event that the employee disregards it resulting in a claim against both the individual and their employer.

It is important to remember that harassment can also be based on other protected characteristics, such as race, national origin, age and disability and this should be covered in the training.

As employers must provide a workplace free from unlawful harassment this includes liability for the alleged harassment by non-employees, including contractors. For example, a situation can arise on a construction site where the employee of a subcontractor complains of harassment by the employee of the general contractor. Although the alleged harassment is by a non-employee, the subcontractor-employer is still required to investigate the complaint and take remedial action to prevent further harassment. This can be difficult for the employer to address and would almost certainly require communication and cooperation with the alleged harasser’s employer.

How to deal with a claim

In the event that a grievance or claim is raised, the employer should follow their published policy and investigate in a timely manner in order to decide whether to press disciplinary charges against the alleged offender that could result in their dismissal for gross misconduct. If the victim is not satisfied that their employer has dealt with the matter they can bring a claim in the Employment Tribunal for sex discrimination and harassment, although this claim must be issued within three months less one day of the offending act. The employee usually claims against both the employer and the alleged perpetrator. If an employer can show that it took all reasonable steps to stop employees from harassing each other it is less likely to be held liable and can claim a statutory defence leaving the harasser to pay any compensation that is awarded.

What can you do if you are affected?

Depending on the nature of the harassment, make the instigator aware that you are unhappy with their behaviour by confronting them yourself or indirectly via a colleague speaking on your behalf. If the harassment continues then alert your site/line manager or HR and consider raising a complaint having made a note of every incident that occurs. Without good evidence or a compelling witness to back you up it can be difficult to prove a case of sexual harassment as it’s often one person’s word against another and especially difficult to establish where alcohol has been consumed at work related social events where recollections are often different.

Tania Goodman is a Partner and Head of Employment at law firm Collyer Bristow LLP. She can be reached by email This email address is being protected from spambots. You need JavaScript enabled to view it.. Visit www.collyerbristow.com

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