Preventing sexual harassment in the workplace

WHAT IS SEXUAL HARASSMENT?

Sexual harassment is defined in s. 26 of the Equality Act 2010 as follows. A person (A) harasses another (B) if they engaged in:

  • unwanted conduct
  • of a sexual nature, and
  • that conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B

‘Conduct of a sexual nature’

The Equality and Human Rights Commission (EHRC) provides examples of common behaviours in their guidance, including:

  • unwelcome touching, hugging or kissing
  • sexual gestures
  • propositions and sexual advances
  • sexually explicit messages, posts or emails
  • displaying sexually explicit images
  • sexual jokes or comments
  • innuendo
  • intrusive questions about a person’s sex life, or comments about their own sex life

Note that a single incident can amount to harassment.

‘In the course of employment’

  • This will generally cover anything that occurs in the workplace, or as an employee goes about their normal duties (i.e. when making deliveries, attending site visits)
  • Incidents at social events such as after-work drinks, or a leaving party will likely be closely connected to work and ‘in the course of employment’
  • Going to an individual’s home is likely to be considered too remote – although an increase in home working might change that view

THE DUTY TO PREVENT SEXUAL HARASSMENT

  • The Worker Protection (Amendment of Equality Act 2010) Act 2023 introduced, from 26 October 2024, a new duty on employers to take reasonable steps to prevent sexual harassment of employees in the course of their employment (Equality Act 2010, s. 40A).
  • This is an anticipatory duty - unique to sexual harassment - which requires employers to take action to prevent sexual harassment before it happens.
  • The new legislation does not give employees a freestanding right to bring a s. 40A claim. Only the EHRC can do this.
  • Where an employee presents a claim that includes allegations of sexual harassment, and succeeds on all or part of that claim, the tribunal will need to consider whether the new obligation has been satisfied. If it is not satisfied, it will have the discretion to order the employer to pay a compensation uplift of no more than 25%, reflective of the extent to which the
  • The enforcement action which the EHRC can take includes:
    • investigations
    • issuing an ‘unlawful act notice’ requiring employer to remedy any breach
    • entering a binding agreement with employer to prevent future breaches
    • seeking an injunction
  • The new duty does not currently require an employer to take ‘all’ reasonable steps, which is a high bar to overcome. However this will change when the Employment Rights Bill comes into force.
  • What is ‘reasonable’ may depend upon the circumstances and the resources of the employer.
  • The new duty seeks to prevent all acts of sexual harassment in the workplace, including those committed by third parties.

EHRC GUIDANCE TO PREVENT SEXUAL HARASSMENT

  • The EHRC has published technical guidance to help employers, as well as an 8-step guide.
  • It is likely that the guidance will be treated as a requirement by tribunals to demonstrate compliance with the duty, in the same way that the ACAS code is treated in terms of grievances and disciplinaries.
  • The guidance describes the duty of prevention as ‘anticipatory’ and that it requires employers to identify and assess the risk of sexual harassment taking place in any given scenario, and to then take steps to prevent or to put a stop to it.
  • It expressly states that sexual harassment can be committed by another worker, an agent acting on behalf of the employer and a third party.
  • Third parties include customers, clients, service users, patients, friends and family of colleagues, delegates at a conference, members of the public.
  • Employers must consider the different situations in which workers may come into contact with third parties, assess the risk of sexual harassment occurring in those situations and take reasonable steps to prevent such harassment.
  • The guidance provides some indication of what might be considered ‘reasonable’ and how the determination will vary subject to the individual circumstances of any case. The guidance states that what amounts to ‘reasonable steps’ is an objective test and it’ll vary from employer to employer. 
  • Factors that may be relevant include:
    • the size of the employer
    • the nature of the workplace (e.g. professional office, factory floor, call centre, restaurant serving alcohol, care home)
    • the risk of contact with third parties
    • the types of third parties involved (e.g. fellow professionals, members of the public, etc)
  • The EHRC has also published a checklist, action plan and monitoring logs for employers which, while originally designed for the hospitality sector, but can be adapted to suit other workplaces. It focuses on three main areas:
  1. how to promote a culture of zero tolerance and communicate with staff that sexual harassment is taken seriously
  2. how to control the working environment to make it as safe as possible and
  3. working practices to make sure that organisations know when sexual harassment takes place and how to deal with it

PRACTICAL STEPS TO PREVENT SEXUAL HARASSMENT

  • If sexual harassment is already covered in a DEI policy, consider extracting the section on sexual harassment and creating a free-standing policy.
  • Conduct risk assessments of sexual harassment in the workplace. These should consider facts specific to the sector, the type of work, the ways of working, and different roles within the organisation. Higher risk factors that employers should be aware of include meeting clients or service users alone, work-related social events with or without alcohol, power imbalances between staff, travelling for work including overnight stays, and certain characteristics of employees that place them at higher risk such as being younger or having learning difficulties.
  • Provide training to employees, managers on sexual harassment and keep updated.
  • Require senior leaders to be involved in the development and oversight of a compliance plan, including regular reviews of whether the chosen steps have been effective.
  • If third-party suppliers will be attending site, consider requesting confirmation that employees have undertaken sexual harassment training and/or will comply with business policy on sexual harassment.
  • Post notices in public areas (and on website and telephone messages) that sexual harassment of staff will not be tolerated.
  • Review and publish all relevant policies:
    • clearly define what sexual harassment is and what is and what is not acceptable
    • ensure that employees have access to the policy and have read it
    • regularly review and, if necessary, update
  • Ensure that there are clear procedures for reporting or addressing allegations of harassment, e.g. what to do if one employee makes allegations of harassment against another.
  • Ensure that the policy on sexual harassment is enforced by acting upon a complaint of harassment and follow the relevant procedures promptly.
  • Keep records of any allegations of sexual harassment and how it is addressed.
  • Engage with workers. Ask them where the risks lie and what measures they think would be effective to prevent sexual harassment. Encourage them to report any incidents or situations where they felt at risk.
  • Conduct regular 1-2-1s and exit interviews to gain a better understanding of working conditions and culture.
  • Engage with employee representatives or a trade union in relation to policies and training requirements.
  • Assess if employees (especially those who might not speak English as a first language) clearly understand:
    • the policy on sexual harassment and where to find it
    • what sexual harassment is
    • what to do if they experience or witness harassment
    • the consequences of committing harassment

EMPLOYMENT RIGHTS BILL

Stronger anticipatory duty

  • The Employment Rights Bill requires employers to take ‘all reasonable steps’ to prevent sexual harassment, raising the bar from the current standard of ‘reasonable steps’.
  • The Bill states that regulations may be introduced specifying the steps that are to be regarded as reasonable for the purposes of both the new duty. This may include steps such as carrying out risk assessments, publishing plans or policies, and steps relating to the reporting and handling of complaints.

Third-party harassment

  • The Bill will reintroduce employer’s liability for third-party harassment. Importantly, this will extend to harassment for all protected characteristics under the Equality Act, not just sexual harassment.
  • Liability will arise from the first instance of harassment.
  • Employers will be liable unless they can demonstrate that they took ‘all’ reasonable steps to prevent the harassment.

Whistleblowing

  • The Bill explicitly provides that an employee who makes a disclosure about sexual harassment will be protected under the existing whistleblowing legislation.
  • This will not mean that any complaint about sexual harassment automatically counts as whistleblowing. A worker is only protected if they disclose information to an appropriate person and reasonably believe this to be in the public interest.