Although sexual harassment has been against the law for several decades, it remains prevalent in the workplace.
A TUC survey in 2016 found that more than half of all women have been subjected to sexual harassment in the workplace at some point in their working lives; and this figure rises to nearly two thirds of women between the ages of 18 and 24 years old.
Campaigns against this rampant form of discrimination have gained momentum over the past few years in the wake of the #MeToo movement.
The Equality and Human Rights Commission (EHRC) published their report, Turning the tables: ending sexual harassment at work¸ in 2018. Looking at the responses from 750 people, the report found that:
- Around a quarter of those reporting harassment said the perpetrators were third parties such as customers or clients, however some employers viewed this as a “normal” part of the job.
- Around half of the respondents had not reported their experience of harassment to anyone in the workplace as they did not believe the organisation would take the issue seriously, they believed the alleged perpetrators (in particular senior staff) would be protected, they feared being victimised and also felt there was a lack of appropriate reporting procedures.
Following this, the EHRC recently published technical guidance on Sexual Harassment and Harassment at Work (Guidance). The 82-page document provides advice to workers in helping them understand the law in this area, sets out employers’ legal responsibilities in respect of such conduct, and highlights the steps that can be taken to tackle and respond effectively to sexual harassment.
Importantly the Guidance contains an entire Chapter of recommendations and practical steps which businesses need to implement if they want to be able to prevent and successfully defend claims of sexual harassment.
Claims for sexual harassment are potentially costly – both because compensation is potentially unlimited if the claim is upheld, but also because of the damage which a successful claim (or even allegations) can have on a business.
We can help you address these issues including by auditing your practices and policies and providing you with clear action so that you can demonstrate compliance in this area. If you are interested in finding out more please contact your usual member of the Brabners Employment team.
What exactly is sexual harassment?
As a starting point, it is important for employers to understand what comes under the legal definition of “sexual harassment”. The Equality Act 2010 sets out that sexual harassments occurs where both:
- A engages in unwanted conduct of a sexual nature
- The conduct has the purpose or effect of either violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
So what does this actually mean in practice?
The Guidance sets out that “unwanted” conduct essentially means “unwelcome” or “uninvited” on a subjective basis, from the viewpoint of the victim. This means that the intentions of the perpetrator do not matter; unlawful sexual harassment can occur whether it was intentional or not. Where sexual harassment is not intentional, however, objective tests come into play, as the Courts need to consider not only the perception of the victim but also all the other circumstances of the case, including whether a reasonable person would have been offended in the same circumstances.
The Guidance covers a range of different sorts of behaviours that might amount to harassment from the more obvious physical touching to banter, social media posts or even facial expressions.
The Guidance also helpfully sets out numerous examples of conduct “of a sexual nature” including sexual comments or jokes; displaying sexually graphic pictures, posters or photos; making promises in return for sexual favours; intrusive questions about a person’s private or sex life or a person discussing their own sex life; and unwelcoming touching, hugging, massaging or kissing.
What practical steps should you be taking as an employer?
The Guidance sets out the law very clearly and claims to be "the authoritative and comprehensive guide to the law and best practice in tackling harassment."
The practical steps include some that most businesses will already be taking, for example:
Have in place effective and well communicated policies and practices which aim to prevent harassment and victimisation (paras 5.4 to 5.6).
However, it is important that businesses ensure their policy is up to date and meet the recommendations for what would constitute a good anti-harassment policy. These include:
- Stating sexual harassment, harassment and victimisation are unlawful, will not be tolerated, and may lead to disciplinary action up to and including dismissal;
- Setting out that aggravating factors such as abuse of power over a more junior colleague will be taken into account when deciding what disciplinary action to take; and
- A commitment by an employer to review the policy at regular intervals and to monitor its effectiveness.
Interestingly the Guidance recommends that these policies are made available on an external facing part of the business’ website so that if a worker is off sick they are able to access it.
However, it’s all well and good for an employer to implement an anti-harassment policy and simply keep it in a drawer, or somewhere on the intranet, but if workers are unaware of it, and if it is not enforced in practice then there is no point in adopting one.
The Guidance reiterates that all workers should undergo anti-harassment training so that it is clear to them what constitutes harassment and what they can do if they experience it. Workers should be regularly reminded of the existence and contents of the sexual harassment policies, starting with induction but also regular communications such as internal newsletters, staff meetings and an annual reminder. Employers are advised to republicise the policy in advance of any “high risk” events such as an office party. Where workers are from different ethnicities it might be appropriate to ensure they are translated into different languages. Furthermore, managers should be equipped with the requisite knowledge and skills in dealing with complaints of sexual harassment.
Overall, the key message that needs to be conveyed is that sexual harassment will not be tolerated; if this is done properly, workers will feel confident that any complaint they make will be investigated properly and taken seriously.
The Guidance also suggests taking specific steps to evaluate whether the policies are working, A key recommendation is a centralised complaint record that includes enough details for any trends to be analysed.
It also suggests carrying out staff surveys which anonymously ask workers questions concerning the prevalence of sexual harassment in the workplace. The Guidance gives specific pointers for the sorts of questions that should be asked.
Any themes arising from these data sources can be analysed to ascertain whether the workplace culture needs to be reviewed and realigned and whether existing policies are working or need to be updated.
In addition, employers are reminded they must be proactive at all times, knowing exactly what is going on in the workplace. In doing so they may be alert to warning signs that harassment is taking place. The Guidance notes that employers should be alive for possible sexual harassment being the root cause of sickness absence, or a change in behaviour, a dip in performance, or avoidance of a certain colleague.
Individuals should feel comfortable in attending their place of work without any fear or worry over how they are going to be treated. In the unfortunate circumstances where, for example, they are subjected to unlawful treatment like sexual harassment, they should feel assured that they have somebody to confide in, that there are vigorous procedures in place to investigate and take action against a wrongdoer, and that there would not be any repercussions from raising an issue.
While many employers have policies that say malicious complaints will result in disciplinary action, this should be phrased very carefully so that individuals are not deterred from coming forward and speaking out. Employers should reassure their workers that most complaints are made in good faith and, even if a complaint is not upheld, they will not be subjected to a detriment or any disciplinary action (as long as it was not made in bad faith).
The above suggestions are not an exhaustive list of what has been recommended in the Guidance, however the common theme that runs through them all is the need for an employer to invest in their staff, prioritise their welfare and promote a positive workplace culture.
What happens if you don’t implement the Guidance?
As a business, you want to avoid facing allegations of sexual harassment.
Claims can be expensive to defend and, if successful, the amount of compensation is potentially unlimited (and could be significant).
Your organisation would also suffer reputational damage – tribunal judgments are publicly available and often attract press attention; if you sponsor foreign workers, this may result in your licence being revoked or withdrawn; and if you have a Gangmasters and Labour Abuse Authority licence you may lose your licence because you will have breached the Licensing Standards.
Taking these steps not only reassures staff that their employer does not condone such behaviour but, importantly, they also demonstrate to an employment tribunal that you have taken practical steps to prevent and deal with sexual harassment in the workplace, and are going to put you in a much better position to successfully defend any claims that might arise.
Although compliance with this Guidance is not a strict legal requirement, all businesses, irrespective of their size, should take steps to implement these recommendations. For big employers and those with significant resources, tribunals will expect nothing less.
We can help you address these issues including by auditing your practices and policies and providing you with clear action so that you can demonstrate compliance in this area. If you are interested in finding out more please contact your usual member of the Brabners Employment team.
This contains a general overview of information only. It does not constitute, and should not be relied upon, as legal advice. You should consult a suitably qualified lawyer on any specific legal problem or matter.
