Sexual harassment and the workplace

By Sam Dickinson, Equality and Diversity Partner at Mayo Wynne Baxter.

While much was said in the press about the government’s new Employment Rights Bill last month, the Bill itself was lacking in crucial detail.

That detail will be determined by Regulations which themselves won’t be made until next year, after the replies to the numerous consultations that are currently underway have been considered. This means that we won’t be seeing any new laws come into force for quite some time so, for now, it is, largely, business as usual for employers.

That said, one change in legislation that has already taken place, and about which employers must be aware, is the duty to prevent sexual harassment which came into force on 26 October 2024.

What is harassment?

Harassment is a specific form of discrimination that sits alongside other forms of discrimination (such as indirect discrimination and victimisation) and is prohibited under the Equality Act 2010.

For many years harassment related to age, sex, sexual orientation, disability, gender reassignment, religion or belief has been prohibited in the workplace.

Harassment is defined as unwanted conduct related to one (or more) of these characteristics that has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

When is comes to sexual harassment there is an extra layer of protection for those who are subjected to unwanted conduct of a sexual nature which includes behaviours such as inappropriate touching, sexual jokes or gestures or sending sexually explicit emails.

The Equality Act also forbids less favourable treatment because an employee submits to or rejects unwanted conduct of a sexual nature. This might arise where a manager refuses somebody a promotion because they’ve previously rejected that manager’s sexual propositions.

Who can be liable?

Under the Equality Act, anything done by an employee in the course of their employment is treated as having also been done by the employer. The employer can be liable for harassment, irrespective of whether the harassment is done with the employer’s knowledge.

Is there a defence to harassment claims?

One way of defending a harassment claim in an employment tribunal is to persuade the tribunal that your company took ‘all reasonable steps’ to prevent your employees’ committing acts of harassment. This is a narrow defence and hard to run successfully.

What’s new?

From 26 October 2024, the law went one step further by introducing a new proactive duty on employers to take reasonable steps to prevent (specifically) sexual harassment in the workplace.

If an employer loses a sexual harassment claim in a tribunal, then the tribunal can uplift compensation by up to 25% if it finds that the employer failed to take reasonable steps to prevent sexual harassment.

Remember that compensation in harassment claims is unlimited – 25% on top of a hefty initial award could be a massive financial hit for a business.

What should employers do now?

There are lots of things a business can and should be doing now, not just to prevent legal claims arising but to ensure that their workplaces are respectful and safe places for all.

Carry out a risk assessment to identify where the risks of sexual harassment arising in your workplace exist. These hot spots will be different in different workplaces and your employees may be best placed to identify them so involve them in this process. A good risk assessment should be based on an honest and critical look at the culture in your workplace.

After the assessment has been done, consider what steps you can take to reduce or remove that risk. Consider which are reasonable to take bearing in mind the time, cost and potential disruption caused by taking the step. Lastly, implement any reasonable steps identified.

Having a robust anti bullying and harassment, and equality and diversity policy in place and a clear and robust grievance policy, setting out how employees can raise issues, is vital. But policies alone are not enough. A business can have several, but if managers don’t live up to the values that the organisation says it stands for, policies are worthless. 

Training is crucial but not just a box ticking session; training must be tailored to the reality of working life in your business and should include the risk of harassment from non-employees as well. Consider going through workplace-specific scenarios and giving clear advice to employees as to how to deal with any third-party issues that are likely to arise.

We may think we know what bullying, harassment and sexual harassment look like in the workplace, but the experience of all survivors is different – what might be camaraderie and ‘banter’ to one person could be unwanted, hurtful, or degrading to another.

Managers and supervisors should get extra training on identifying and handling equal opportunities and harassment issues. If those who are perceived to be at the top of the organisational hierarchy are seen to take harassment seriously, then others will follow.

Management training should acknowledge that harassment and sexual harassment do not always happen in plain sight. Managers should be trained to listen effectively and empathetically and to actually ‘ask the question’ in the first place to bring an employee’s experience out of the shadows.

Managers should familiarise themselves with what could be indicators of a workplace where harassment is occurring.  These include increased time off work, changes in behaviour and reduced productivity and engagement.

It should go without saying that any complaints of harassment must be dealt with immediately, and employees must be able to see that decisive action is taken where appropriate.

It is a statistical fact that sexual harassment in the workplace is mainly an issue for women. It’s important for workplaces to consider the importance of men in preventing sexual harassment in the workplace and for male colleagues to be coached to stand up for females in the workplace to fight sexual harassment at work.

With Christmas approaching it is important to remember that staff socials, such as Christmas parties, are seen as extensions of the workplace. This means that there is a strong probability that employers will be held liable for any harassment that takes place during staff parties, even if they are held off the premises.

www.mayowynnebaxter.co.uk