Employers in Bermuda who do not have workplace policies to guard against sexual harassment, risk the severest of penalties if an employee is found guilty of harassing a fellow employee.

Sexual harassment is defined in the Human Rights Act 1981 (“the Act”) as engaging in a course of sexual comment or sexual conduct towards another person that is vexatious and which he or she knows, or reasonably ought to know, is unwelcome.

Sexual harassment by an employer, or by any person employed, is prohibited under the Act.

Anyone who is the victim of sexual harassment may make a complaint to the Human Rights Commission.

Anyone found guilty of sexual harassment is subject to a fine of $5,000. On any second or subsequent offence, offenders face a possible imprisonment term of up to three years, or a fine of $15,000, or both.

If an employer fails to act when he becomes aware of a situation involving sexual harassment, he may incur a liability both in relation to the Human Rights Commission, and in relation to the victim, who may sue the employer in civil court.

Employers face some difficulties in this area.

There may be reluctance on the part of a harassed employee to make a complaint to the employer. The employee may not recognise that the behaviour of the perpetrator amounts to sexual harassment, or the perpetrator may be a senior manager or supervisor with an otherwise unblemished record.

Or, in the foulest of cases, the senior manager or supervisor may insinuate that the employee's refusal to submit to the sexual advances of the supervisor would adversely affect her employment.

Some examples of sexual harassment include a boss who made sexual remarks to his secretary almost daily over a four-year period, and an employee who received unsolicited e-mails of a sexual and improper nature from a co-worker.

Another example concerns a campaign of sexual innuendo, suggestive remarks and intimidating conduct used by employees who wanted to have the victim employee transferred out of their department.

Employers must ensure that their workplace remains harassment free by educating employees about behaviour that might be considered sexual harassment.

Provide examples, as some employees may not be aware that their actions and words amount to sexual harassment.

Some employees may consider that they are being amusing or friendly whereas their actions are causing serious harm to their colleague.

Using pet names, touching or innuendo can be construed as sexual harassment. Consider the circumstances of the claim made by an employee in proceedings against a supervisor, which alleged that the supervisor persisted in asking her out even she declined; came to her office to tell her she was doing a good job but then proceeded to rub her shoulder and back; and asked if she had a new hairstyle and started picking up her hair and playing with it.

Is this supervisor the office pest? Is this sexual harassment? These are but a few examples of how to educate staff about behaviour patterns that may amount to sexual harassment.

Managers, in particular, should undergo periodic training so that they recognise the symptoms of sexual harassment, and so that they increase their own awareness about what constitutes sexual harassment.

Once workplace policies are put in place, and employees have been made aware of those policies, employers must ensure that the policies are enforced in order to protect themselves from complaints or possible prosecution under the Act.

It is incumbent upon the employer to deal with instances of sexual harassment as they arise and to make clear to employees the boundaries of acceptable behaviour.

When dealing with an instance of sexual harassment, employers should re-state the policy on relationships at work, and educate the employee about the standard of behaviour expected.

An employer, who finds that an employee is engaging in behaviour that amounts to sexual harassment, may suspend the employee pending an investigation by the employer.

If the employer concludes that sexual harassment has taken place, it may dismiss the employee on the grounds of serious misconduct and/or a breach of company policy.

Employers seeking assistance in developing workplace policies may wish to seek the advice of a lawyer specialising in this area.

Attorney Kelvin Hastings-Smith is Manager of the Litigation Department at Appleby Spurling & Kempe. Copies of Mr. Hastings-Smith's columns can be obtained on the Appleby Spurling & Kempe web site at www.ask.bm.

This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.