Legal lowdown: Sexual harassment in the workplace

In light of the TUC's shocking report into sexual harassment at work, what are employers' responsibilities?

The TUC recently reported that 52% of women have been sexually harassed at work, with most employees not reporting this. Employers should be taking action to reduce the likelihood of sexual harassment occurring in the workplace and supporting those who bring any complaints forwards.

Employers should be aware that sexual harassment can take more than one form. Anti-discrimination laws protect workers against unwanted conduct of a sexual nature and unwanted conduct due to the person’s sex or gender where this has the purpose or effect of violating someone’s dignity or creating an intimidating, degrading, humiliating or hostile environment. This covers numerous acts including jokes or ‘banter’ about a person’s sex life or unwanted touching through to requiring sexual favours to achieve a promotion. Importantly, what constitutes harassment depends on the outlook of the person complaining, so a remark that may be funny to one person could constitute sexual harassment by another.

Employers will be vicariously liable for any acts of sexual harassment by their employees during the course of their employment, including any events outside the working day such as work parties or outings. Therefore employers should take all reasonable steps to prevent harassment from occurring. An important first step is to introduce and enforce an anti-harassment policy. The policy should contain both the process to follow if employees believe they have suffered a form of sexual harassment and the potential outcomes of a finding that this has taken place. The harasser can be disciplined under the normal disciplinary procedure and it will be important to include this as a clause within the policy. Additionally, employers should carry out equal opportunities training with all managers and staff. This should cover what constitutes sexual harassment, how to avoid it, how to report it and, importantly for managers, how to deal with a complaint of harassment from an employee.

Employers should create a culture where employees feel they can make complaints about sexual harassment and that these will be taken seriously by managers. An effective way to do this is to nominate a person to make complaints to. Being sexually harassed will usually be an embarrassing and sensitive issue for employees and any uncertainty about who they should bring this matter to will only encourage them to stay quiet.

Not dealing with a claim appropriately could lead to a judgment that the harassment has been facilitated and institutionalised within the workplace. Any harassment claims should be fully investigated and evidence, such as witness statements, should be sought in a timely manner before a decision over whether harassment occurred can be made. In circumstances of serious harassment suspension of the alleged harasser should be considered.

While the TUC survey focuses on sexual harassment carried out by colleagues or seniors, the possibility of this occurring against female employees by clients, customers and service users is high. Section 40 of the Equality Act 2010 previously protected employees from harassment by a third party that occurred in the course of their employment; making employers liable if they knew the employee had been harassed on at least two occasions and had failed to take any reasonable steps to prevent the third party from doing so again. The section was repealed in 2013, largely because of the recognition that employers have little or no control over the actions of a third party. Employees with protected characteristics will be protected under section 26 of the Equality Act but survey results such as the TUC’s, which show that harassment in the workplace is not reducing, could lead to calls to increase employee protection from harassment in the workplace and potentially a review of third party harassment.

Alan Price is HR director at Peninsula