Sexual Harassment

Sexual harassment is unlawful and can be a criminal offence.

The Equality and Human Rights Commission (EHRC) report that three-quarters of people say they have experienced some form of sexual harassment at work and the rest have witnessed harassment or supported others (Equality and Human Rights Commission, 2018, ‘Turning the tables: ending sexual harassment at work’). A notable study also found that 68% of lesbian, gay, bisexual and trans people report being sexually harassed at work (TUC, 2019, ‘Sexual harassment of LGBT people in the workplace’).

This is a substantial issue which is facing legislative reform, discussed in the ‘Legal considerations’ section of this article. As such, it is a pressing matter for employers to be aware of, not only to ensure legal compliance, but to create a safe working environment which promotes equality, diversity and inclusion amongst the workforce and protects their mental and physical health and welfare.

What is sexual harassment

Sexual harassment is unwanted conduct of a sexual nature. It must either:

• have the purpose or effect of violating a person’s dignity (either intentionally or unintentionally), or:
• have created an intimidating, hostile, degrading, humiliating or offensive environment for that person.

It can be a single act of unwanted treatment.

Under the Equality Act 2010, it is classed as a form of ‘prohibited conduct’, akin to discrimination.

Examples of sexual harassment

There are many ways in which sexual harassment can occur, including:

• comments of a sexual nature, such as remarks about a colleague’s appearance, questions about their sex life or offensive jokes
• non-verbal communication or interaction, such as gestures or simulations
• unwelcome advances
• displaying pornographic images or drawings
• e-mails with material of a sexual nature
• unwanted physical contact
• sexual assault.

The scope of sexual harassment means that someone could be harassed, even if the conduct was not directed toward them. For example, someone who witnesses a group of employees exchanging sexually explicit jokes could potentially claim sexual harassment, even if they were not involved in the conversation, if the person did not want to hear that kind of language and it created a hostile or degrading environment for them.

Less favourable treatment for submitting to or rejecting sexual harassment

If a person should submit to this kind of unwanted conduct, or alternatively, if they reject this conduct and are then treated less favourably for having done so, this is also classed as sexual harassment. For example, if someone objected to advances from a manager and subsequently failed their probation as a result, the dismissal could be treated as sexual harassment.

Victimisation

Closely linked to harassment is the issue of victimisation. Victimisation is detrimental treatment directed to a person who has made or supported a complaint about discrimination.

Legal protection

The Equality Act 2010 is the law which protects people against harassment at work in the UK and it protects employees and workers of any gender or sexual orientation. No qualifying period of employment is needed. Claims under this Act must be brought within three months, beginning from the date on which the event took place.

It has a broad scope in connection with employment in that it applies to different kinds of employment events such as job advertisement and recruitment, during employment, discussions about pay, dismissal and after employment.

There are also varying extent to which it covers those not in employment, and special circumstances. This includes: self-employed, volunteers, crown employment and parliament staff, armed forces, police, partnerships, limited liability partnerships, barristers and advocates, office holders, qualification bodies, employment agencies and providers of training/work experience, trade organisations such as unions and local authority members.

Territorial scope

It protects against harassment which takes place in England, Wales or Scotland.

Seafarers and those working offshore, on ships, hovercraft or aircraft have more complex protections and are subject to additional regulations.

In situations where the harassment occurs abroad, or the victim was abroad at the time when the harassment occurred, then the scope of the legislation also becomes a more complex issue. If the connection to British employment law is strong enough to justify it, there is potential that the Equality Act 2010 can cover workplace issues which have an international aspect to them.

Civil claims

It is important to remember that civil claims may also be brought non-employees, such as job applicants and those hired to do work personally on a self employed or contractor basis.

Liability and responsibility

Employers can be held liable for sexual harassment in the following ways:

1. On behalf of itself: the employer as a whole can be liable for its conduct toward its employees and in the ways discussed above, such as recruitment practices.
2. The conduct of their employees: Employers can be vicariously liable for sexual harassment committed by their employees or agents against another of their employees.
3. Vicarious liability for events linked to work: Employers also have vicarious liability for harassment that takes place ‘in the course of employment’. You may be surprised to learn that in the ‘course of employment’ can include situations such as after work drinks (see: Chief Constable of the Lincolnshire Police v Stubbs et al).
4. Third-party harassment: Whether or not (and the extent to which) an employer has liability for the acts of a third party, such as a customer or a supplier, who harasses their employees is a complex area of law which is not certain. (In 2023, a proposal to introduce specific law around third parties was dropped.) Nonetheless it is perhaps poignant to remember that employers must take steps to prevent harassment which may occur in the course of employment and to provide a safe working environment and as such, it would be responsible to take steps to mitigate the chance of third-party harassment from occurring in the first place.
5. Duty to prevent sexual harassment: With effect from 26 October 2024, employers can be liable if they fail to take reasonable measures to prevent harassment and victimisation. This means that employers are required to take appropriate steps to prevent such treatment and if they should become aware of an issue it must be dealt with robustly, with urgency and with sensitivity.
6. Personal liability: Individuals within an organisation can also be held personally liable for their conduct toward others in this way, separately from the employer.

Employer responsibilities

Employers are required to create a safe working environment. They may discharge any vicarious liability for the acts of their employees, if they can show that they took reasonable measures to prevent sexual harassment and victimisation from occurring at work in the first place.
If they should become aware of an issue it should be dealt with robustly, with urgency and with sensitivity.
If they fail to adequately manage the risk or complaints of sexual harassment, they can be held legally responsible if a worker is sexually harassed at work or at work related events.

Preventing sexual harassment

Preventing sexual harassment is a specific new legal duty on employers which will be enforced from 24 October 2024.
The Equality and Human Rights Commission (EHRC) produced guidance to support employers with the prevention of sexual harassment. They identify these seven steps:

1. Develop an effective anti-harassment policy. (See our ‘Documents’ tab.)
2. Engage staff with regular one-to-ones and have an open-door policy.
3. Assess and mitigate risks in the workplace.
4. Consider using a reporting system that allows workers to raise an issue anonymously or in name.
5. Train staff on what sexual harassment in the workplace looks like, what to do if workers experience it and how to handle complaints.
6. Act immediately when a harassment complaint is made.
7. Treat harassment by a third-party just as seriously as that by a colleague

It is anticipated that the EHRC guidance, including the above steps, will form a statutory code of practice in 2024, along with the enforcement of the new statutory duty which is discussed further below in the ‘Legal considerations’ section of this article.

Identifying a problem and beating the fear of reporting

Sometimes a complaint about sexual harassment is explicit, however sometimes a complaint is made subtly. Generally, people do not want to open up about what has happened to their manager or colleagues as they often feel embarrassed or even ashamed. They may prefer to simply hope that it will stop, take time off work or even resign, rather than confront the problem.

It is a good idea to be on the alert for an indication that a member of staff is unhappy. If something does not seem right, consider finding an opportunity that does not draw too much attention from others to speak with them privately and ask them twice: ‘Is everything alright?’ ‘Is there anything going on that I could help you with?’

The fear of reporting is a concerning barrier to identifying harassment. Many individuals struggle to come forward about what has happened to them for a number of reasons, which can include:

• Embarrassment talking about the topic or the idea that they ‘let it happen’.
• Concerns about how it will impact their job.
• Worries their colleagues will treat them differently.
• Not knowing how the complaint will be managed.
• Fears of bullying by the harasser (or others) for reporting them.

It is important for employers to ensure their employees know that they would be supported and protected if they ever experienced treatment such as this. Below are some tips you can take now as an employer to overcome reservations and concerns your employees may have about telling you they have been sexually harassed by a colleague, or anyone else, during the course of their work.

1. Publish a clear zero tolerance statement and circulate it to all staff.
2. Be sure that all your staff know of at least two senior people that they should confide in, if need be, ideally from different areas of the organisation.
3. Ensure you have a relevant harassment and grievance policy and check that they are reader friendly. It should set out clear steps which someone in distress would feel are achievable. The policy should not deter people from coming forward.
4. Adopt an open-door approach to encourage employees to speak with their line managers.
5. Raise awareness. Advise your staff about what sexual harassment and give examples. Explain what to do if harassment happens and raise awareness to your policy. Break down the stigma and promote a responsible approach to the subject matter.
6. Invest in training for both managers and staff so that they can recognise harassment, deal with it effectively and avoid being a perpetrator, whether deliberately or inadvertently.
7. Explore unexpected resignations including any that allude to a workplace issue.
8. Look into stress related absences and check if there is anything going on at work you should know about.

Handling a complaint

Process

Many employers advise their employees to raise a complaint through the grievance procedure. Managers will then follow the formal grievance process to structure the way the complaint will be handled. Some employers may even have a specific harassment policy which incorporates a procedure for handling the complaint.

Employers must take a zero-tolerance approach and so even if a complaint is not raised formally, all harassment allegations which are brought to your attention must be investigated thoroughly – regardless of whether or not the individual concerned wants you to take action. This is because employers have a duty of care to protect the member of staff (as well as other employees) and to prevent further harassment or victimisation.

Where allegations may amount to gross misconduct, then suspension (or an appropriate alternative where possible) will need to be arranged without delay. If the investigations suggest that harassment has taken place, then the accused will need to be subject to disciplinary action and in severe cases this may result in dismissal.

Once the investigations have been concluded and any necessary disciplinary action has been taken, an outcome can be given to the grievance and any subsequent appeals that are submitted may be dealt with accordingly.

Striking the balance

It is the job of a manager to exercise the employer’s duty of care toward both parties. This can make managing such sensitive allegations particularly tricky. Therefore, it is important to consider ways of striking the sensitive balance that is required in these types of cases.

Communicating the approach

Once you become aware of a complaint, managing it closely should become an absolute priority.
Employers should follow their policies, but they should also ask the employee if they are comfortable with the intended approach and what their ideal outcome would be. This would give you a good idea of what to aim for in order to satisfactorily improve the situation for your employee.

Explain the process you intend to follow (in accordance with your grievance or harassment policy) to both parties separately. This should reassure both parties that a fair process will take place and helps to manage their expectations.

Speak to the accused employee before involving others

Once a meeting has been held with the employee who brought the complaint, it is important to try to speak to the employee who has been accused before speaking to any possible witnesses or involving too many managers. This is because the individual may be able to quickly exonerate themselves, removing the need of involving others. Involving other people in such a sensitive matter unnecessarily can have a profoundly negative impact on the employment relationship with the accused and (especially if innocent) could begin to make it untenable for them to continue to work there.

Both parties may become distressed

The individual who suffered the harassment may be feeling vulnerable or even unsafe and it may have a serious impact on their mental health. It is perhaps less often thought of, but the accused may also become highly distressed. Employers need to take appropriate responsibility for the welfare of both parties.

It is important that they both understand the approach that is being taken, i.e. that first and foremost a thorough and fair investigation into what is alleged to have happened will take place before there is any further action.

It is a good idea to check that the person bringing the complaint has someone in their home life to support them. Similarly, once the accused has been advised of the allegations, it is worth asking if they have a family member or friend they can call if they should need support.

Both parties should be provided with the contact details of an employee assistance programme (EAP) if you have one in place.

It is worth asking both parties if there is anything that could be done to help them to feel more at ease whilst the process is on-going. (E.g. How any absences are communicated to other staff, whether any temporary change to working patterns or work location which the business can reasonably accommodate may be helpful for their welfare etc.)

Tone

At least throughout the grievance hearing and the investigation, the tone of language used in any questions that are asked or letters that are issued should be, non-accusatory but fact finding and exploratory in nature and must be sensitive.

This would only change in a disciplinary hearing, if investigations have uncovered that there has been misconduct and there was a need to take formal action.

Different perspectives

Sometimes it transpires that there is a big difference between how an act was intended and how it was perceived. Similarly, some acts may be considered relatively minor to some people and very serious to others. Whilst the viewpoints of everyone involved in a situation should be taken into account, ultimately it is the perspective of the person who received the treatment that counts the most in the eyes of the law.

Repairing salvageable work relationships

Depending on the severity of the situation and the will of the complainant, it may be possible to repair minor situations which reatins the emplopyment of the accused, with facilitated meetings. In some cases, professional mediation may be more appropriate. The approach should be offered to the member of staff who was harassed and then mutually agreed.

Potential issues and common questions

Should I tell the accused?

Yes, you will need to speak to them about it. It may be that you need to speak to them immediately with a notetaker present. This is so that you can quickly determine the requirement to suspend. If a brief conversation convinces you of their innocence it may be that no further action is needed. However, if you are in any doubt whatsoever, you will need to give them brief details of the reason for suspension, pending further investigation.

If the person reporting the harassment is uncertain of whether they are being harassed or not, advise them what constitutes sexual harassment. Ask them to tell you what has happened so that you can decide if it is sexual harassment. Only if they choose not to tell you or they wish to think about whether it is making them uncomfortable, should you agree not to speak to the accused. You should arrange a catch-up meeting in the near future to see how things are going.

What if the employee resigns and I suspect the reason is because they have been harassed or accused of harassment?

Try and speak to the individual directly and discuss their concerns. It may be appropriate to give your employee a cooling off period. Put in writing that you want them to reconsider their decision and of your intention to fulfil your responsibilities toward them. If you have had to discipline an employee, explain that you have acted in accordance with procedures but that they may appeal if they felt that the outcome was not fair.

What should I do if the employee goes off sick?

With the employee’s agreement you should continue to run your internal harassment or grievance procedure, offering meetings in a neutral location if preferred. You should also continue your investigations into the alleged misconduct. You should agree a level of contact with your employee so they do not feel abandoned, but equally feel they are being given a chance to get better.

How should I manage the relationship between the employee and the accused employee?

This is tricky, however you should have been able to ascertain from the outset whether it is necessary to suspend the accused, or to put alternative measures in place – such as temporarily moving them to another department. In which case there is usually sufficient space between the two parties whilst you investigate matters.
Thereafter, it may be appropriate to speak to the parties separately and mutually agree a way forwards. Ask your employee what would make them feel more comfortable and accommodate it where possible e.g. moving location, changing lunch breaks, working a different shift etc. However, be careful that any measures that are taken before the processes have concluded cannot be misconstrued as punitive, otherwise it may appear that you have victimised or pre-determined a disciplinary outcome.

Managing the relationship between the employee and the accused external third party.

Contact the accused’s line manager and explain your concerns so that they may undertake their own investigations. It may be that they can send an alternative person, you choose another provider, or that you send someone else to work with the third party.

Disproved and malicious allegations

If a claim was made sincerely but the employer cannot find any evidence to substantiate the claim, then we are left to work on repairing the working relationship as best as possible. This may be through a series of facilitated meetings or even professional mediation.

In contrast, exploiting a system that has been put in place to protect vulnerable people, is wholly unacceptable. Not only does it undermine genuine traumatic experiences, but it may constitute an act of bullying. Therefore a malicious and false claim of harassment against an individual may be treated as a gross disciplinary offence with possible outcomes going right up to and including summary dismissal.

Legal considerations

Perspectives

How someone perceives an act can be subjective and what is a serious matter to one person may seem trivial to another. This can be for all kinds of often unseen reasons such as differences in personalities, belief systems, past-experiences and traumas and more. Ultimately, it is the view of the person who received the treatment that usually takes precedent in tribunal. However, it is possible for an employer to consider whether an employee has been overly-sensitive. For example in Heafield v Times Newspaper Ltd the tribunal determined it was not reasonable the employee to have taken offence in the context of the situation.

Criminal offence

This article discusses sexual harassment in the context of discrimination only but it is important for employers and individuals to be aware that they can be pursued for sexual harassment connected to work in the criminal courts, as well as the employment tribunals.

Future legal changes

A new duty on employers to prevent sexual harassment

The Worker Protection (Amendment of Equality Act 2010) Act 2023 officially became law across the UK at the end of October 2023. The implications of this new Act, which will be enforced one year on, from 26 October 2024, pose an increased responsibility on employers to prevent harassment of a sexual nature in the workplace.

One of the key provisions introduces a specific duty on employers to take reasonable steps to prevent sexual harassment of employees. Moreover, it provides that any compensation awarded for harassment, which is found to be of a sexual nature, may see an increase of up to 25% if the employer has failed in fulfilling this new duty.

It is important for employers to anticipate and prepare for the changes the new law entails. Employers would be well advised to prepare for these forthcoming modifications to ensure compliance and, more importantly, to create safe and respectful work environments for all employees. They will be expected to proactively establish measures that encompass reasonable steps in preventing sexual harassment. This might involve regular and effective training, robust policies, thoughtful event planning to mitigate risks, and consistent, thorough investigations of complaints.

This may not substantially alter the practices of employers who are already dedicated to upholding good employment practices, particularly in preventing discrimination and harassment. The term ‘reasonable steps’ remains open to interpretation and as cases arise and case law develops, a clearer understanding of what constitutes reasonable steps may emerge.

For those interested in the development of this new duty, a notable point to consider is the modified nature of this legislation. Originally, the Act was proposed to necessitate employers to take ‘all’ reasonable steps to prevent harassment, yet the word ‘all’ has been omitted. Additionally, an initial plan included specific protection against third-party harassment, which is no longer a part of the finalised Act. This sparked varied reactions, with some viewing it as a diluted approach compared to the earlier proposal and others believing it to be a more proportionate obligation on businesses than it would have otherwise been.

Extending time limits for claims and the scope of protection

The government are reviewing public feedback on plans on; an extension of the 3-month time limit to bring a discrimination claim in tribunal, how to strengthen and clarify the laws on third party harassment and whether interns and volunteers require further legal protection.

Confidentiality clauses – preventing misuse

Although clauses and non-disclosure agreements can serve a useful and legitimate purpose for employers, a number of cases have brought to light that these have prevented victims of sexual harassment at work from speaking out. Proposals to prevent misuse in the future include; legislating so that confidentiality clauses cannot prevent disclosure to the police, regulated health care professionals or legal professionals, producing guidance for the drafting of settlement agreements and introducing enforcement measures for non-compliant clauses.

Further information

Acas

Acas provide dedicated advice pages about sexual harassment which supports both workers and employers about how to understand this topic including advice on what to do if you have been sexually harassed at work, witnessing sexual harassment, handling a complaint and preventing harassment of this kind.

Equality and Human Rights Commission (EHRC)

The EHRC provide guidance on sexual harassment and harassment in the workplace and an employer guide to support with preventing sexual harassment at work.

Trade union and employer associations

Applicable unions or associations may have resources and tools available to help support your practices.

Contact the police

If you have been advised of a sexual assault or rape, to contact the police;

• call 999 if there is an immediate danger
• call 101 if there is not an emergency
• report a crime online for England and Wales at Police.uk
• report a crime online at Police Scotland

Ask to speak to a specialist in sexual violence.