The recent case involving a junior doctor at Royal Stoke University Hospital highlights an important issue: what happens when someone reports sexual harassment or sexual abuse at work, but feels that the organisation responsible for protecting them has failed them?

A recent BBC report has brought renewed attention to the experience of a junior doctor who was sexually harassed by a fellow doctor colleague while working at Royal Stoke University Hospital in Stoke-on-Trent in June 2020.

The tribunal heard how Dr Jawad Ahmad trapped his female colleague in an office the hospital, pushed her on to a chair, and then massaged and kissed her whilst working late together during night shifts.

The junior doctor told the BBC that she had lost trust in her employer and in the NHS after reporting what happened to her. According to the report, the subsequent investigation was mishandled, including a breach involving her confidential statement. An Employment Tribunal later found that University Hospitals of North Midlands had unlawfully discriminated against her on grounds of sex.

The junior doctor has described the profound impact the events had on her. She ultimately left medicine after nine years of training and working.

Her experience raises an important question which extends far beyond this particular case: What legal options are available when someone suffers sexual abuse or harassment in the workplace, particularly where the employer's response makes matters worse?

This case provides an important reminder that, where an employee is sexually harassed by a colleague, the legal responsibility may extend beyond the individual perpetrator. In particular, the case illustrates the importance of vicarious liability claims, as well as claims under the Equality Act 2010 for sexual harassment.

In this case, the Employment Tribunal proceedings against University Hospitals of North Midlands NHS Trust resulted in a finding that the claimant had been subjected to unlawful harassment contrary to the Equality Act 2010.

The Tribunal found that the conduct by the fellow doctor amounted to unwanted conduct of a sexual nature which violated the claimant's dignity and created an intimidating, hostile, degrading, humiliating and offensive environment.

Importantly, however, the Tribunal did not simply consider the conduct of the individual doctor; It also considered whether the Trust was legally responsible for the harassment. The Tribunal ultimately concluded that the Trust had failed to establish that defence. The case therefore provides a useful illustration of an important principle that an employer may be legally responsible for sexual harassment committed by an employee depending on the circumstances of the case.

What is vicarious liability for sexual harassment?

Vicarious liability is the legal principle under which one party can be held responsible for wrongdoing carried out by another because of the relationship between them.

In the employment context, it commonly arises where an employee commits a wrongful act sufficiently connected with their employment.

The general common-law test is often described as the "close connection" test. The Courts in England and Wales have explained that the question is whether the wrongful conduct is so closely connected with the acts the employee was authorised to do that it can fairly and properly be regarded as having occurred in the ordinary course of the employee's employment.

For purposes of making a civil claim sexual misconduct is capable of falling within the scope of vicarious liability where the individual has a superior role (such as management of employees and uses this position to abuse the survivor). This will be based on the individual facts of the case.

Claims based upon discrimination or harassment may fall under the Equality Act 2010. A major difference between vicarious liability claims and Equality Act claims is the time difference. For an Equality Act claim , the time limit is 6 months and therefore if you have concerns you should not delay in seeking legal advice.

What amounts to sexual harassment under the Equality Act?

Sexual harassment can take many different forms. It is not limited to the most obvious or extreme examples of sexual misconduct. It can include unwanted touching or sexual advances, sexual comments or jokes, inappropriate messages, comments about someone's body or appearance, or other behaviour of a sexual nature which makes someone feel uncomfortable, humiliated, intimidated or degraded.

Importantly, it is not simply a question of whether the person responsible thought their behaviour was harmless or "just a joke". The circumstances and the effect of the conduct on the person experiencing it are important. What may be dismissed by one person as workplace banter can, in the right circumstances, amount to unlawful sexual harassment. Each case will turn on its particular facts, including what happened, how it affected the individual and whether that reaction was reasonable in the circumstances.

Sexual harassment does not necessarily have to take place inside the workplace or during normal working hours. Conduct at work-related social events, conferences, training courses, business trips, work parties or other occasions connected with employment may still fall within the scope of the law. The important question is the connection between the conduct and the employment, rather than simply where it happened.

This can be particularly relevant where colleagues socialise outside work or where an incident takes place after work, at a work function or while travelling for work. Of course every case will turn on its own facts, and so if you have experienced sexual harassment in circumstances connected with your employment, it is worth taking legal advice so we may assess whether a civil claim for compensation is possible.

Seeking advice

If you suffered sexual abuse and/or harassment at work, or in within any other setting/capacity, you may be entitled to bring a civil claim for compensation.

Our specialist abuse solicitors can assess the circumstances of your case, including whether an organisation may be legally responsible for the actions of the person who abused you.

If you would like confidential advice about whether you may have a claim arising from abuse by a scout leader, teacher, coach, youth worker, religious leader or another person in a position of trust, contact us for a confidential initial discussion.

Contact Hannah Hodgson at hannah.hodgson@switalskis.com or Danielle Vincent at danielle.vincent@switalskis.com, specialist abuse lawyers, for a confidential discussion about your legal rights.