Last reviewed 11 May 2022
Employees deserve dignity and respect whilst at work. Sexual harassment undertaken by colleagues or third parties can impact that and have negative consequences on the physical and mental health of the individual, as well as their productivity and efficacy at work.
What is sexual harassment?
Under s.26 (2) of the Equality Act 2010 (EqA):
“Unwanted conduct of a sexual nature that has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment.”
It is worth noting that while a tribunal will take the “victim's” view of the behaviour into account, it must determine if it is reasonable to conclude that harassment has occurred where there was no intent to offend.
In many instances, victims may be reluctant to complain because of the seniority of the harasser, for example, or for fear of the consequences in terms of their job security, or that nobody will believe them.
Why should employers act on sexual harassment?
Employers that want to promote the wellbeing of their staff must create an environment that actively promotes their physical and mental health. This forms part of an Environmental Social Governance agenda and allows for the creation of a sustainable workforce.
There are also potential legal, commercial and reputational consequences for employers who fail to properly educate and protect their staff from unacceptable behaviour, such as the reported issues at DeepMind, a Google-owned firm in London that has been widely criticised for “outright ignoring” sexual assault complaints. This, in turn, can drive customers and business partners away, reduce staff retention and mean the best talent are no longer attracted to the business.
A Government Equalities Office Sexual Harassment Survey, undertaken online between Jan and Feb 2020 found that in relation to the workplace:
29% had experienced sexual harassment in the last 12 months
only 15% of those who had experienced it reported it
of those who had reported sexual harassment, 50% said their job changed
50% of those who reported it were asked to sign an NDA
almost 1/4 didn’t know how their employer was tackling sexual harassment; 1/3 were sure there was a policy, and 45% thought there probably was
satisfaction with the outcome of reporting was relatively low at 1/3
it is common for victims to believe that there had been no consequences for the perpetrator — in 43% of the workplace sexual harassment experiences the victim had taken some form of action. This figure was much lower for experiences that had been formally reported (20%).
This shows how important having a well-publicised policy on this is, to encourage reporting and deter would be perpetrators.
How might sexual harassment take place?
The Equality and Human Rights Commission (EHRC) released guidance in 2020 on preventing harassment at work. This provides a list of behaviours that may constitute harassment, provided it is both unwanted and relates to an individual’s protected characteristic:
posts on social media
Example: A male worker alters a pornographic image by pasting an image of his female colleague’s face on to it. He then sends it to their other colleagues, causing them to ridicule her. There was no sexual motivation behind this act, but the use of the image is sexual in nature. (Paragraph 2.19, EHRC guide.)
At some point when parliamentary time allows, this guidance will become a statutory code, which will mean that an employer’s failure to follow it could result in a 25% uplift of any award given at tribunal.
What is the law?
Employers have a general duty of care towards their employees during the course of their employment (including attendance at work events or client visits), as well as a specific obligation to protect staff from harassment in the workplace, under the EqA. Employers are also vicariously liable for the actions of their staff, unless they have taken reasonable steps to prevent the behaviour through relevant training and policies.
Moonsar v Fiveways Express Transport (2004)
Where behaviour is obviously degrading and offensive (as opposed to borderline behaviour), then the fact an employee has not complained about it to the employer is “of little or no significance” and will not provide the employer with a defence; neither will the fact the behaviour was not directly aimed at the employee.
Fricker v Gartner (2022)
It is not a defence to say the employee is “sensitive” when language that has been used towards them is clearly demeaning (calling an adult employee a “good girl”, in this case). It was pointed out in this case that:
“Language evolves over time. Words and phrases that might once have seemed harmless are now regarded as racial, homophobic and sexist slurs.”
Third party harassment
Another area that has come under the spotlight recently is third party harassment. Originally defined in s.40 EqA as:
“Where, in the course of employment, a third party harasses an employee, and the employer has failed to take such steps as would have been reasonably practicable to prevent the third party from doing so.”
This gave protection when an employer failed to take such steps as would have been reasonably practicable to prevent it and knew that the employee had been harassed in the course of their employment on at least two other occasions by a third party (whether or not the third party was the same person on each occasion).
This section was, however, repealed in 2013. This has left employees relatively unprotected, as demonstrated by Unite the Union v Nailard (2018) (Court of Appeal), which held that employers are only liable in exceptional circumstances for harassment by third parties, where the employee can show that a protected characteristic was the reason for the employer’s failure to protect them.
Steps employers can take now
There are a number of steps employers can introduce to prevent sexual harassment in the workplace.
Have a policy outlining the definition of sexual harassment and the consequences of it (ie disciplinary action), that also applies to third parties and has a wide scope (including work visits and social events).
Use signage to highlight zero tolerance.
Encourage reporting by staff via a sensitive and confidential procedure.
Take swift steps to tackle behaviour — train staff on those steps.
Introduce measures such as code words “I’m just going to the back” or hand signals that indicate to colleagues that they need help.
Create a culture that promotes respect and equality.
Implement regular training on harassment.
Train line managers and make them aware that this does not just happen to women, as, according to the 2020 survey, men are affected almost as much as women. Men and women should be treated with equal sensitivity, and processes applied just as robustly.
Proposals for reform
In July 2021, the Government announced the intention to introduce a new duty for employers to prevent sexual harassment in the workplace. This is intended to bring about a renewed focus on employer action and enforcement.
It is also proposed to reintroduce new rules preventing third party harassment, where employers will be liable unless they can show that they took “all reasonable steps” to prevent it.
This will be introduced “as soon as parliamentary time allows”. These changes would mean that sexual harassment should become a high priority and help bring about significant cultural change.