1. The Equality Act 2010, section 26 (2) and (3) defines sexual harassment, which is one form of sexual misconduct. It includes conduct by A of a sexual nature which has the effect of violating B’s dignity or creating an intimidating, hostile, degrading or offensive environment for B, even if A did not intend this. Whether conduct constitutes sexual harassment will depend on both B’s perception and whether it is reasonable for B to have perceived A’s conduct in that way. A can also carry out sexual harassment if A treats B less favourably because B did not submit to A’s sexual advances.
2. Some forms of sexual misconduct may also constitute criminal offences under a range of legislation, including, but not limited to, the Sexual Offences Act 2003 and the Protection from Harassment Act 1997 and national legislation in Scotland and Northern Ireland. Potential criminal offences include sexual assault, rape, stalking or disclosing private sexual images to cause distress (‘revenge pornography’).
Consent
3. Under the Sexual Offences Act 2003, a person is regarded as consenting to sexual activity if (a) they agree to it by choice and (b) have the freedom and capacity to make that choice. This Policy uses the same definition of consent in relation to sexual misconduct.
4. Capacity—A person’s capacity is dependent on whether they are physically and/or mentally able to make a choice and to understand the consequences of that choice. For example, a person does not have the capacity to give consent if:
- They are drunk or under the influence of drugs, for example they may still be physically able to have sex, but they may not be able to consent.
- They are asleep or unconscious.
- They may not have capacity if they have a disability or impairment, including learning difficulty, physical disability, or mental health condition.
5. Consent must be present every time a person (A) engages in sexual activity with another person (B). A must stop if they are not absolutely sure that they have B’s consent. Any prior consensual sexual activity or relationship between A and B does not, in and of itself, constitute B’s consent to further sexual activity with A. B may withdraw consent at any time (including during a sexual act) and consent can never be implied, assumed, or coerced.
More detailed guidance
If the information has not answered all your questions about how to manage sexual harassment, then please feel free to contact us.