How can employers reduce sexual harassment in the workplace?

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 an 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.

Sexual harassment headlines have felt relentless in 2023 – from multiple allegations at the crisis-ridden CBI to decades of alleged sexual misconduct at Odey Asset Management, and most recently reports from more than 100 staff at McDonald’s of sexual assault harassment and bullying. It feels as though organisations are witnessing more incidences of sexual harassment or misconduct, or at the very least they are being reported more.

The whistleblowing charity, Protect, has seen a 117% increase since 2017 in the average number of calls per year relating to sexual harassment, and the proportion of calls it receives on its advice line has risen from 0.35% in 2017 to 1.11% in 2023 so far. 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.

Worker Protection (Amendment of Equality Act 2010) Bill

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. As of October 20^th this year, The Worker Protection Bill has passed its final stage in the House of Commons which means it will be come law before the end of the year, albeit in a form that is significantly less onerous than had been originally proposed.

As originally proposed, the Bill would have:

1. imposed liabilities on employers for failure to take “all reasonable steps” to protect their staff from third party harassment (essentially seeking to re-create protections that previously existed under the Equality Act 2010); and
2. created a new legal duty for employers to take “all reasonable steps” to prevent sexual harassment of staff during the course of employment. This duty was stated to be enforceable by the Equalities and Human Rights Commission.

In the version of the Bill that was approved, item one above was removed in its entirety. Item two was recast to require the employer to take “reasonable steps”, rather than “all reasonable steps” to prevent the sexual harassment of their staff.

The result is that rather than establishing a duty for employers to protect their employees against third party harassment on the basis of any protected characteristic, the Bill now only establishes a duty in relation to “sexual harassment”, as defined under the Equality Act 2010.

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.

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.

If you have concerns or questions about sexual misconduct or allegations in your workplace or are interested in any further information on this topic, please contact our Employment Team by emailing employment@warnegoodman.co.uk or calling 023 8071 7717.