Understanding Sexual Harassment in The Workplace

There have been a number of high-profile bullying and harassment cases in recent months.  Dominic Raab became the latest member of parliament to be accused of bullying. The Confederation of British Industry (‘CBI’) has been in the news due to repeat allegations of sexual harassment and assault, admitting it hired ‘toxic’ staff.  More recently, although not technically a workplace situation, the head of the Spanish Football Association, Luis Rubiales, reluctantly resigned following wide condemnation after kissing player Jenni Hermoso during the World Cup celebrations.

Frequent media attention does bring these issues to the forefront for both employers and employees.  In this article, we consider the current employment law surrounding bullying and harassment, and what employers can do to prevent it happening at work.  We will also consider some proposed to changes to the law.

What is Sexual Harassment?

The Equality Act 2010 defines sexual harassment taking place when:

‘Someone engages in unwanted conduct of a sexual nature and the conduct has the purpose or effect of violating the individual’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.’ 

An employer can be liable if an employee harasses another in the course of employment and this need only be a single incident if it is sufficiently serious. It does not matter if the employer has no knowledge of the incident or that the harassed employee has not immediately reacted to the conduct. 

Types of Sexual Harassment

Sexual harassment can be deemed unwanted where the victim has participated in ‘banter’ as a coping strategy.  While not quite as common, men can also be the victims of sexual harassment.  The victim does not have to be the opposite sex as the perpetrator, and the harassment does not need to be sexually motivated, only sexual in nature.

The Equality act 2010 also protects people from two additional types of sexual harassment.  These are harassment related to sex (i.e. the person’s gender) and less favourable treatment stemming from someone’s rejecting or submitting to harassment.

What Are Some Examples of Sexual Harassment in The Workplace?

It is usually obvious on the facts if any conduct was sexual in nature. In 2020 however, the Equality and Human Rights Commission published a guide that both employers and employees can refer to for helpful guidance and what amounts to sexual harassment. Some of the more common examples include:

• Unwanted sexual advances
• Touching
• Assault
• Jokes
• Displaying explicit photographs and/or drawings
• Sending text messages or emails containing sexual material

The list is not exhaustive but does contain a helpful reminder of some of the more common examples of sexual harassment. As instant messaging becomes more and more common, often including the creation of work WhatsApp groups, employers and employees should be mindful that what some may class as a harmless joke or ‘banter’, may be considered offensive or upsetting by others.

Was The Effect of The Harassment Reasonable?

Employees accused of sexual harassment often seek to justify the behaviour during the disciplinary process by saying that it was simply meant as a joke and the recipient was being over-sensitive.  From a Tribunal’s perspective, in deciding whether sexual harassment has taken place, it will look at:

• The perception of the claimant;
• The other circumstances of the case; and
• Whether it is reasonable for the conduct to have had the effect of violating a person’s dignity or creating a hostile, degrading, humiliating or offensive environment.

It follows then, that if the person claiming sexual harassment is viewed as being hypersensitive, there will be no harassment. This is an objective test and is often a fine line as Tribunals do wish to be mindful of the hurt caused by offensive comments and conduct but do not wish to encourage the imposition of legal liability where a complainant’s reaction is hypersensitive. There has, however, been a shift in the public’s view on what constitutes sexual harassment following the #MeToo movement, and employees are less likely to tolerate certain treatment in the way they did previously.  It is therefore likely that the line the Tribunal draws will become increasingly finer and that conduct once said not to constitute harassment could potentially constitute harassment now.

What Are The Potential Consequences of Failing to Deal With Sexual Harassment?

Often the main consequence is that the employee subjected to harassment can seek redress in the employment tribunal.  This can be against the perpetrator and the employer themselves.  The harassed employee has three months from the date of the discriminatory incident to initiate proceedings.  If they are successful, they can be awarded compensation for their financial loss as well as injury to feelings which is dependent upon the impact on the victim and seriousness of the sexual harassment.  Compensation in relation to harassment and discrimination is uncapped and can result in significant awards.  In very extreme cases, a Tribunal can award career long losses.

The consequences of failing to deal with sexual harassment aren’t simply limited to adverse judgments.  An employer, especially a large high-profile company, also should consider the potential for reputational damage.  As we have seen with the CBI, even though the recent press related to historic cases, the CBI lost numerous contracts which led to a significant loss of profits.  Where a Tribunal does find against an employer, these judgments are uploaded to the judgment database and are accessible by the public.  As prospective employees are becoming increasingly concerned with an employer’s ‘brand’, any noise around an employer allowing sexual harassment to take place in the workplace can have a detrimental impact on their ability to recruit.  Likewise, those employees found to have committed sexual harassment do risk this adverse finding being on the public judgment database, which is searched by some employers as part of recruitment.

What Defence is There to Sexual Harassment?

Defending a claim of sexual harassment claim is not as simple as an employer seeking to blame a rogue employee.  An employer can be vicariously liable for any acts of sexual harassment.  There is a statutory defence, if the employer can show that they took reasonable steps to prevent the harassment.

The reasonable steps defence will not be satisfied where employers merely have equal opportunities policies and procedures sat on a shelf gathering dust.  Policies must be reviewed and updated, staff have to be trained and re-trained and complaints have to be taken seriously such as taking disciplinary action where appropriate.  Essentially, employers are expected prioritise prevention and to evidence that they have put into practice and trained and retrained staff on their internal policies and procedures.

What Should be in an Equal Opportunities Policy?

As outlined above, adopting a comprehensive equal opportunities policy is not the only thing employers need to do, it is the first thing employers should look to introduce and update.

A robust policy should outline what type of behaviour is and isn’t appropriate in the workplace.  There should be clear procedures and guidance on how complaints should be raised and handled.  Sexual harassment is a particularly sensitive issue and as we have seen with recent publicised cases, people are often afraid to come forward.  Victims of sexual harassment often feel helpless and concerned that complaints won’t be taken seriously.  It is important to reassure victims that any allegations they raise, will be dealt with promptly, sensitively and on a confidential basis to allay any fears they have about repercussions.  If an employee raising complaints about sexual harassment does suffer repercussions this will give rise to an additional claim of victimisation.

It is often the case that the perpetrators of sexual harassment are senior employees.  In such cases, there needs to be a clear path to complain to someone more senior and careful considering should be given to the overall impact of the investigation.  Suspending the alleged perpetrator is a common response, or if that isn’t possible, relocating the victim of the alleged harassment.  However, employers need to be careful when taking this path, as they do not want to be perceived to be punishing the employee making the complaint.

How to Encourage People to Speak up About Sexual Harassment at Work?

Policies and the general attitude towards sexual harassment at work should be inclusive.  It should make it clear to staff that any allegations will be treated appropriately.  That allegations will be looked into, treated with sensitivity and that people making genuine allegations will not face adverse repercussions.

We have seen in the news how difficult it can be for people to raise allegations of sexual harassment.  Often people do not come forward, whether in work or not, due to the fear of not being listened to, or receiving negative treatment from the person they have accused.  We have seen a number of high-profile sexual harassment cases in recent years where victims have said they tried to complain at the time, but were not listened to, and were not taken seriously.

It is important for employers to make sure that all staff are treated with respect at work.  Employers must give their employees the surety that any allegations raised will be treated sensitively, discreetly and with anonymity.  Employees who have been treated badly as a result of having made a complaint will have a claim for victimisation.

What Legal Developments Have Been Proposed?

The Equality Act historically contained provisions which meant that employers could be liable if an employee was harassed by a third party in the course of their employment, but those provisions were repealed in 2013.

The Worker Protection (Amendment of Equality Act 2010) Bill was introduced to the House of Commons at the end of 2022 and initially sought to:

• reintroduce employer liability for harassment of employees by third parties, such as clients and customers; and
• impose a new proactive and positive duty on employers to take “all reasonable steps” to prevent sexual harassment in the workplace from taking place.

Objections were raised in the House of Lords based on the increased costs to employers, the possible impact on free speech, and concerns over unnecessary intervention by the state in business. The government has now removed third party liability from the Bill, meaning that employers will not be liable for the harassment by third parties, which will be disappointing for many who hoped to see liability reintroduced.

The Bill also contains a new proactive duty designed to further tackle sexual harassment in the workplace, but this too has been watered down.  Another amendment to the Bill is that employers will only be required to take “reasonable steps” rather than “all reasonable steps” to prevent sexual harassment of their employees.  Such steps could include training for managers and staff and having robust policies and procedures for handling complaints.  While this is a less onerous duty than the original wording would have imposed, it will still introduce a new general legal obligation requiring employers to take action to prevent sexual harassment.

The duty to take “reasonable steps” to prevent sexual harassment will be underpinned by a new statutory code to be published by the Equality and Human Rights Commission, and employment tribunals will be able to award a 25% uplift on compensation where an employee successfully brings a claim for sexual harassment and the employer is found to have breached this duty.

Even without some of the new obligations being introduced by the incoming Bill, it is essential that employers continue to adhere to current legislation.