The government recently released its response to the consultation on sexual harassment in the workplace, which proposes legal changes to offer enhanced protection to employees.
We outline below the proposed legislative measures and some best practice advice to prevent sexual harassment from occurring within your business.
Background
Unfortunately, sexual harassment in the workplace is a widespread problem, as seen by the #metoo movement.
There is also an increased risk of sexual harassment due to the new working conditions arising from the pandemic, with fewer people present in the office, out-of-hours working and increased job pressure.
The outcome of the government’s 2019 consultation revealed that 54% of respondents to the public questionnaire had experienced sexual harassment at work.
The government admits that the law alone cannot prevent sexual harassment.
However, it plans to introduce a preventative duty on employers as a ‘symbolic first step’ towards tackling this issue, which it hopes will influence broader work culture.
Definition of sexual harassment
Sexual harassment is defined in the Equality Act 2010 as:
‘Unwanted conduct of a sexual nature’ which has ‘the purpose or effect of violating the individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment’.
A wide range of behaviours can amount to sexual harassment, even if the perpetrator has no ill intentions, including:
- Jokes and banter
- Graphic images and sexually explicit messages
- Sexual comments and advances
- Unwanted physical contact
Employer liability
Employees who experience sexual harassment committed by their employer or colleagues can bring a claim to the employment tribunal, and there is no length of service requirement to bring this type of claim.
An employer will be liable for harassment perpetrated by an employee in the course of their employment, which includes work-related social events unless the employer can show that it took all reasonable steps to prevent it.
To avoid liability the employer would need to evidence that:
- It had an effective anti-harassment policy in place, and staff were made aware of its implications
- Allegations of sexual harassment are taken seriously by the company and dealt with fairly and efficiently
- Where complaints are upheld, perpetrators are subject to the disciplinary procedure
Potential reform
The government has put forward three legal developments intending to enhance the existing law surrounding workplace sexual harassment.
1) New duty to prevent sexual harassment
Currently, the law holds employers liable when an act of sexual harassment occurs in the workplace, and they haven’t taken all reasonable preventative steps.
The government is proposing to introduce new legislation that will instead place employers under a proactive duty to prevent sexual harassment at work.
The detail of what this duty will involve is yet to be seen.
However, it is suggested that an act of sexual harassment must still have happened before an employee can bring a tribunal claim.
The government intends to support the duty by giving the Equality and Human Rights Commission (EHRC) greater scope to enforce it by entering into legal agreements with liable employers.
It will also publish a statutory code of practice and supplementary guidance for employers to know the practical steps required to protect against sexual harassment in their workplace.
2) Sexual harassment by third parties
Legislation making employers liable for acts of sexual harassment by third parties against their employees was repealed in 2013 as the government considered this was ‘unnecessary’.
However, the government now intends to re-introduce liability for harassment committed by third parties, including clients, customers and sub-contractors.
The government accepts that this may create difficulties for employers who have limited control over such individuals.
Therefore, it will consider whether liability should be limited to sexual harassment by third parties where previous incidents have occurred.
It has also assured employers that a ‘reasonable steps’ defence will be available, which will consider the individual circumstances, including the workplace context.
In some industries, like hospitality, there is a higher risk of sexual harassment by third parties; therefore, employers in these sectors will need to take more extensive measures to protect their employees than employers in other working environments.
3) Time limits for claims
The current time limit for bringing a sexual harassment claim in the employment tribunal is three months from the incident.
The government has acknowledged calls for this to be extended.
It will consider increasing the time limit to 6 months for all claims based on the Equality Act, including discrimination and harassment.
However, it is reluctant to commit to this change due to the strain placed on the tribunal service by Covid-19, and it asserts that resolving the tribunal’s current backlog of claims is the priority at this stage.
Best practice for employers to prevent sexual harassment in your workplace
Although no legal changes have been implemented, so your obligations remain the same, it is best to follow the simple steps below to prevent sexual harassment in your workplace.
This will not only make employees feel safer and supported, but it will benefit your business by avoiding the serious consequences of workplace sexual harassments, which include:
- Loss of valuable female talent
- Low job satisfaction and commitment
- Reputational damage
Review policies and procedures
It is essential to implement policies that clearly set out how you will deal with employee complaints of sexual harassment.
You should take all complaints seriously and conduct investigations into allegations promptly.
Depending on the severity of the situation, you may be able to resolve some cases informally, but others will require formal action against the perpetrator under the disciplinary procedure.
Managers should understand the policy and apply it consistently so that all cases are dealt with fairly and efficiently, and a detailed paper trail should be kept in the event that a tribunal claim is brought.
It may also be worth considering any risk factors present within your business and exploring ways to make working conditions safer, for example, limiting lone working.
Raise awareness
It is not enough to have anti-harassment policies and procedures in place.
It would help if you made sure all employees are aware of your policy and know how to raise complaints.
If you direct employees to their manager, you should provide contact details for another senior staff member in case their complaint concerns their manager.
You should make all staff aware of your no-tolerance approach to sexual harassment in the workplace.
This will help you promote a supportive and respectful work environment, where employees feel empowered to speak up for themselves and support each other.
