The Equality Act 2010 prohibits workplace sexual harassment. In the first instance, employers are liable for the acts of their employees unless they can demonstrate that they took all reasonable steps to prevent the harassment.
Workplace Sexual Harassment – A Definition
Sexual harassment occurs where both:
- Person A engages in unwanted conduct of a sexual nature.
- The conduct has the purpose or effect of either violating person B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for person B.
In deciding whether conduct has this effect, the following must be taken into account:
- Person B’s perception.
- The other circumstances of the case.
- Whether it is reasonable for the conduct to have that effect.
What is unwanted conduct of a sexual nature?
Any unwanted verbal, non-verbal or physical conduct of a sexual nature, such as unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, displaying pornographic photographs or drawings or sending emails with material of a sexual nature.
Conduct can still be unwanted even if the employee has put up with it for years and even if the employee initiated “banter” as a coping strategy.
Conduct can become unwanted say when a consensual relationship ends.
Recent media attention
In December 2017, following high profile sexual harassment scandals in Westminster and Hollywood, the Equality and Human Rights Commission (EHRC) wrote to the Chairs of FTSE 100 companies to ask about safeguards to prevent sexual harassment, reporting harassment without fear and plans to prevent harassment.
In January 2018, the EHRC also launched an online call for evidence seeking information from people who had experienced, witnessed or offered support to those experiencing sexual harassment in the workplace.
Nearly all the respondents were women. The most common complaint was of harassment by a senior colleague. However, just under a quarter of respondents, many of them in the hospitality sector, were harassed at work by a third party such as a customer. This was also the type of harassment that employers seemed least willing or able to deal with effectively.
Around half of all respondents had not reported their experiences, citing a lack of appropriate procedures and a belief that they would not be supported or taken seriously, or would be victimised. Around half of those who did report said that no action was taken as a result, and some respondents described being blamed for their experiences or threatened with negative consequences if they pursued the matter. Most respondents described their employer as “unhelpful” or “very unhelpful“.
On 27 March 2018, EHRC published their report, Turning the tables: ending sexual harassment at work, making a number of recommendations, including:
- A mandatory legal duty on employers to take reasonable steps to prevent workplace sexual harassment.
- A statutory code of practice on preventing sexual harassment, with a power for tribunals to uplift compensation by up to 25% for breach.
- A confidential online tool for employees to report instances of sexual harassment.
- Government research every three years into the incidence of sexual harassment.
- A ban on non-disclosure agreements which try to prevent disclosure of future acts of harassment, discrimination or victimisation.
- A statutory code of practice on confidentiality clauses preventing disclosure of allegations of past sexual harassment.
- Increasing the time limit for claims so that employees have up to six months from the end of any internal grievance procedure to bring a claim.
- Restoration of the repealed third party harassment provisions in the Equality Act, amended to remove the requirement for there to have been two or more instances of harassment.
Comment
Employers would be well advised to take steps now (in advance of new legal requirements) to review their policies, procedures and training to ensure that they are doing their best to promote a culture where sexual harassment is not tolerated and where any complaints and claims are treated seriously and the complainants are dealt with fairly.
It is likely that the law on the use of non-disclosure agreements and confidentiality clauses around sexual harassment complaints will be tightened and employers should think carefully about using these, the messages this sends and whether they will be able to rely on such clauses in future.
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