May 3, 2022
As an employer, you probably don't want to think that it might happen in your workplace, but unfortunately, sexual harassment in the workplace is all too common. A study conducted by the Everyday Sexism Project and the TUC found that half of women of all ages in the UK have experienced sexual harassment at work , and nearly two thirds of women aged 18-24. Sexual harassment can happen to both men and women and is a serious issue that needs to be considered in an employment context.
In this article, we help employers understand the issues in addition to the steps they can take to prevent and address sexual harassment at work.
Employers have a duty to keep their staff safe at work, and there can be complaints, legal consequences and disciplinary action if sexual harassment occurs. So, to start off with, what is sexual harassment?
Sexual harassment is unwanted behaviour of a sexual nature which has the purpose or effect of violating someone's dignity or creating a hostile, intimidating, degrading or offensive working environment.
There's a lot there to get your head around, so let's break it down!
The behaviour must be unwanted. This does not mean that a person needs to have explicitly said "no" for inappropriate behaviour to count as sexual harassment but, for example, a consensual workplace relationship would not, on the face of it, amount to sexual harassment.
The behaviour must be of a sexual nature. This covers a wide variety of different behaviours, some of which include:
A key point to understand, and one that often catches employers out, is that behaviour will amount to sexual harassment if it has either the purpose or effect of making someone uncomfortable. This means that behaviour that was not intended to upset or offend someone might still amount to sexual harassment if it has the effect of upsetting or offending them.
An example of this might be someone persistently asking a colleague out on a date. They might not intend to make their colleague uncomfortable, but if it did then this would likely amount to sexual harassment. In this situation, it is the effect that the behaviour has on the colleague that is relevant. If it is reasonable for them to feel uncomfortable and/or offended, then the behaviour will count as sexual harassment.
Unwanted conduct that has the effect, rather than the intention, of making someone uncomfortable can be more difficult to spot, which is why it is important to understand the distinction. It is not enough to brush something off as a joke - if an employee is feeling uncomfortable about, for example, sexual jokes that are perceived by others as merely "banter", this is something that needs to be taken seriously.
Another key point to understand about sexual harassment is that it does not need to be directed at a particular person for them to feel harassed. This makes it even more important to be aware of the type of culture in your workplace. If, for example, there is a culture of making sexual jokes or banter, this could still amount to sexual harassment if someone who was not involved in the jokes is made to feel uncomfortable. This is because the behaviour might still create a degrading, intimidating, humiliating, offensive or hostile working environment for them, even if it has nothing to do with them.
In addition to the specific offence of sexual harassment, there are a couple of related issues that can come up in connection with sexual harassment that are important for employers to understand. These are:
Less favourable treatment is when someone is treated badly because of their reaction to sexual harassment (whether they rejected the behaviour or submitted to it). An example of this would be a manager pressuring a junior employee for a sexual relationship, and then using their senior position to make the junior colleague's life difficult if they refuse.
Victimisation can occur after a report of sexual harassment has been made. Reporting a breach of the Equality Act (and sexual harassment at work is a breach of the Equality Act) is called a protected act . Once an employee has done a protected act , they cannot be treated badly as a result of having done the protected act . An example would be an employee reporting being sexually harassed and then being passed up for a promotion they would otherwise have received because they reported the sexual harassment.
Employees are protected from sexual harassment at work, as are workers, apprentices, trainees, those on fixed-term contracts and workers supplied by an agency. There is no minimum length of service for protection from sexual harassment (unlike, e.g., protection from unfair dismissal, which employees only get after two years' service).
Anyone who commits sexual assault or harassment at work is responsible for their own unlawful actions. Employers can also be held responsible for the actions of their employees in the course of their employment - this is called 'vicarious liability'. Employers are often a more attractive target for claims, as they have deeper pockets and often have insurance policies in place.
Employers may be able to escape being vicariously liable for sexual harassment if they can show that they took all reasonable steps to prevent the sexual assault or harassment - this is called the "reasonable steps defence". Practically, this means that an employer needs to be able to show the preventative steps that they have taken to prevent sexual harassment at work. There is no one 'silver bullet' that proves an employer has taken reasonable steps - they will need to convince the tribunal based on the circumstances and what steps would have been reasonable for them to have taken. Examples of a reasonable step includes:
There is a high threshold for the reasonable steps defence, as it is designed to encourage employers to take effective action to prevent harassment and discrimination.
Below are seven steps employers can take to prevent sexual harassment in the workplace...
Do you need legal advice relating to a sexual harassment complaint? Our employment lawyers are experts in making the world of work, work for you. Find out more about our employment law offering here.