Legislation relating to sex discrimination and sexual harassment in the workplace has been a part of UK equality law for decades. However, a recent poll of over 1,000 women published by the Trades Union Congress in May 2023 found that 3 in 5 women (and almost two-thirds of women aged between 25 and 34) say they have experienced sexual harassment, bullying or verbal abuse at work.
The Equality Act 2010 (‘the Act’) protects many categories of people against harassment including employees and workers, contractors and self-employed people hired to personally do the work, and job applicants.
Section 26 of the Act prohibits three types of harassment: (i) characteristic-related harassment; (ii) sexual harassment; and (iii) less favourable treatment because of a person’s rejection of or submission to harassment.
What is sexual harassment?
Under section 26(2) of the Act, a person (A) sexually harasses another person (B) if –
- A engages in unwanted conduct of a sexual nature; and
- The conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
The Equality and Human Rights Commission guidance on sexual harassment at work gives examples of what counts as “conduct of a sexual nature” and, among other things, includes sexual comments or jokes, sexual posts or contact on social media, sending sexually explicit emails or text messages as well as suggestive looks/staring and unwelcome touching.
Who is responsible?
For the purposes of the Act, anything done by an employee in the course of their employment could be treated as having also been done by the employer. This means that the employer can be held liable for the harassment of one employee to another.
Furthermore, employers owe a duty of care to their employees to look after their wellbeing. If an employer fails to take reasonable steps to prevent harassment, then this could lead to a serious breach of an employee’s employment contract which may entitle the employee to claim constructive dismissal.
Handling complaints of sexual harassment in the workplace
If someone raises a sexual harassment in the workplace complaint, whether it is informally or whether done through the formal grievance procedure, employers must ensure that the complaint is handled seriously and a full and fair procedure should be followed in line with the Acas Code of Practice on disciplinary and grievance procedures (or, if there is such a policy in place, the employer’s own grievance / disciplinary / harassment procedure).
Before taking any action against the accused, employers would be best advised to promptly conduct initial enquiries to ascertain a claim’s credibility. If the claim merits further investigation, employers may wish to suspend the employee. Suspension is a neutral act which does not imply guilt, and it may make the investigation easier to conduct.
It is important to tackle sexual misconduct claims head on. Some employers try to brush them under the carpet, by offering a financial settlement to an employee or moving them to a different department to separate them from the accused but there are a couple of issues with this approach. Firstly, it does little to change workplace culture, heightening the risk of similar incidents occurring in the future. Secondly, it could carry risks for the employer. If their actions have a negative impact on the complainant, the employer could be exposed to victimisation claims further down the line.
Preventing sexual harassment
Employers must be able to demonstrate that they have taken reasonable steps to address workplace sexual misconduct. It is important they have best practice measures in place to handle any incidents.
Much of this boils down to effectively implemented policies and training. It is important that employees are educated about what constitutes sexual misconduct, and what behaviours will not be tolerated as a result. Providing specific coaching for managers will also help ensure all complaints are dealt with properly and sensitively.
By having effective grievance procedures and anti-harassment policies in place, staff can be empowered to raise complaints without fear of victimisation.
Many, including government ministers, the Women and Equalities Committee, ECHR and the TUC have for some time called for a widening of employers’ duties to include a new preventative duty on employers to tackle sexual harassment in the workplace and to also protect workers from harassment and abuse by third parties like customers or clients.
In response the Worker Protection Bill was put forward as a private member’s bill and reached a second reading in the House of Lords in March 2023. However progress appears to have halted but we continue expectantly to watch this space.
How Moore Barlow can help
If you would like the experienced business employment law team at Moore Barlow to help you draft a sexual harassment policy / procedure, or our personal employment team to advise you on a sexual harassment claim, please get in touch.