Sexual harassment in the workplace

Introduction

There has been an increase recently in press coverage of sexual harassment claims in the workplace, for example, the allegations recently revealed at the CBI which included sexual misconduct claims against employees and an allegation of rape at a summer boat party in 2019. A report by the Fawcett Society in 2021 found that at least 40% of women experience sexual harassment during their career and research commissioned by the BBC found that 40% of women and 18% of men had experienced some form of sexual harassment. The TUC’s research in 2019 found that 68% of disabled women and LGBT workers reported being sexually harassed in the workplace and a poll in May 2023 of 1000 women by the TUC found that two in three young women had experienced sexual harassment, bullying or verbal abuse at work.

Earlier this year McDonalds signed a pledge with the Equality and Human Rights Commission (EHRC) which commits it to implementing several measures to better protect its workers in the UK. In McDonalds’ case this followed allegations of sexual harassment over several years and the company’s failure to deal with the issue. The measures McDonalds is committing to include communicating a “zero tolerance” approach to sexual harassment, providing anti-harassment training for its employees, and improving policies to better respond to complaints. Ikea also recently signed a similar pledge following a complaint of sexual harassment and assault made by a former employee.

It is clear that despite legislation having been in place since 1975 aimed at preventing and protecting employees from being sexually harassed in the workplace it is a continuing issue for employers. The EHRC has also found that the issue is significantly under-reported for a number of reasons including that the organisation would not take the issue seriously, a belief that perpetrators (particularly senior management) would be protected, fear of victimisation and a lack of appropriate reporting procedures.

What is sexual harassment?

Sexual harassment is defined in the Equality Act 2010 as 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. A single incident is enough to constitute sexual harassment and the fact that an employee has put up with conduct does not mean that it is not unwanted and nor does the fact that the employee has initiated or participated in banter as a coping strategy.

Men can be victims of sexual harassment as well as women, the victim can be the same or the opposite sex as the perpetrator and the perpetrator does not have to be motivated by sexual desire for the victim.

There are two other types of sexual harassment prohibited by the Equality Act 2010. These are harassment related to sex (ie gender) and less favourable treatment for rejecting or submitting to harassment.

What does an individual need to show in a sexual harassment claim?

It will usually be quite clear if conduct is sexual in nature, but the EHRC published a technical guide in 2020 that gives both employers and employees guidance on what this means. Examples in the Guide include unwelcome sexual advances, touching, sexual assault, sexual jokes, displaying pornographic photographs or drawings or sending emails containing material of a sexual nature. What is key to remember is that what some may class as a “joke” may not be seen in the same way by the recipient.

What if the individual is particularly sensitive?

In deciding whether the conduct has the effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment, a tribunal will take into account the perception of the claimant, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. The test has both subjective and objective elements to it.

Therefore, if any offence caused is unintentional there will be no harassment if the individual is being “hypersensitive”. This is an objective test, but one for the tribunal to determine and it will often be a fine line.

What are the consequences of failing to deal with sexual harassment in the workplace?

One potentially very damaging consequence is that an employee can bring a claim in the employment tribunal against the perpetrator as well as the employer. This should be made within 3 months of the act complained of, but the tribunal can exercise its discretion to extend time if it is “just and equitable”. If an employee is successful, the main remedy is compensation calculated on the employee’s loss with no upper limit. The amount will depend on whether they have lost their job and is likely to include an element for injury to feelings with the level depending on the seriousness and nature of the harassment suffered.

The other consequences for the employer include serious reputational damage (which can have significant knock-on effects such as drops in share price) if the claims are reported by the media, high profile departures, a reduction in productivity and difficulties with retention and recruitment.

In addition, if a professional is involved, there is also the potential for the relevant regulator to bring disciplinary proceedings against the individual, and possibly the employer too.

How can the employer defend a claim of sexual harassment?

An employer is liable for any acts of sexual harassment carried out by its employees even where this takes place without its knowledge or approval. However, the employer will have a defence if it can demonstrate that it took all reasonable steps to prevent the harassment.

In order to demonstrate a “reasonable steps” defence, the employer needs not only to have policies and procedures in place but be able to show that it enforces those procedures, trains staff on the issues and takes complaints seriously, for example, by taking disciplinary action where applicable against the perpetrator. A policy alone will not be sufficient to satisfy the defence and genuinely proactive action should be taken by an employer. A range of steps can be taken, for instance, conducting workplace reviews with input from employees (on an anonymised basis) so that it can understand what is actually happening in the workplace and implement appropriate recommendations accordingly in addition to setting up a reporting system and circulating appropriate internal communications. In essence, an employer is expected to walk the talk.

Sexual harassment workplace policy

An anti-harassment policy should outline what type of behaviour is appropriate, how managers should handle complaints and a clear procedure for reporting allegations. This is a particularly sensitive issue, and the victims should be supported and reassured that their allegations will be dealt with expeditiously and investigated on a confidential basis. If allegations involve the employee’s supervisor, there should be a clear route to complain to someone more senior and consideration may need to be given to how to manage the dynamic whilst the investigation is ongoing; suspension of the alleged perpetrator may be necessary in the more egregious instances, for example.

Are there any changes to the sexual harassment provisions on the horizon?

There have been huge cultural shifts since the most recent legislation governing sexual harassment in the workplace was enacted (the Equality Act in 2010) so it is certainly appropriate to revisit the current legal mechanisms to ensure they are fit for purpose. There is currently a Private Members’ Bill going through Parliament which will introduce employers’ liability for third-party harassment e.g. by customers or clients, and also provides that employers will not be liable for the expression of certain opinions by others in the workplace.

The Bill introduces a duty on employers to take all reasonable steps to prevent sexual harassment of their employees and gives employment tribunals the power to uplift compensation by up to 25% where an employer is found to have breached the new duty to prevent sexual harassment. The government is currently backing the Bill but there have been recent press reports that suggest the Bill is going to be shelved amid concerns that it will open businesses up to costly legal battles.

Our view is that while most people would agree that more needs to be done to tackle sexual harassment in the workplace, how that is achieved in practice is something that many cannot yet agree on. Nevertheless, whether this Bill is shelved or not, it seems inevitable that change is coming at some point, and with the public interest in this topic rekindled by the recent news stories, the Government may find it tricky to delay action much longer.

Our expertise

We advise on all aspects of employment law including on issues relating to sexual harassment in the workplace. In particular we have a specialist consultancy service R4-consultancy-and-support-services (Review, Report Resolve and Respect) bringing together experts in employment law, regulatory requirements, reputation management, family law, equality and diversity training and HR investigations. Our team provides auditing and training to assist staff in reviewing and reporting risks. They also advise on internal and external investigations, counselling services and regulatory reporting to aid the resolution process. We help employers to put in place the policies and procedures to support their employees and business with confidence.

Please contact Nick Hawkins or Sophie Rothwell or your usual Charles Russell Speechlys contact if you would like to get in touch.