Unfortunately, allegations of sexual harassment seem to be in the news daily. I am part of that female demographic of a “certain age” that a certain TV celebrity recently singled out for complaining about sexual harassment.
When I was in my 20’s I witnessed and experienced sexual harassment both in and outside of the workplace. I knew that this behaviour was wrong, but at the time it was generally accepted that such behaviour happened even in a workplace. I like to think that such behaviour is less common now and more likely to be considered by the majority to be unacceptable, but it does still exist.
Baroness Kishwar Falkner, the Chairwoman of the Employment and Human Rights Commission has recently said that:
“Sexual harassment continues to be widespread and often underreported….”
Hopefully, the recent introduction of new sexual harassment legislation will be a step towards preventing sexual harassment in the workplace in the future.
Employer legal obligations after the introduction of the Worker Protection (Amendment of Equality Act 2010) Act 2023.
On 26 October 2024 the Worker Protection (Amendment of Equality Act 2010) Act 2023 (the 2023 Act), came into force. This placed a new duty on employers to prevent sexual harassment in the workplace.
The Equality Act 2010 (2010 Act) already prohibited both sexual harassment and any less favourable treatment because an employee has rejected, or submitted to, conduct of a sexual nature. Employers could also already be vicariously liable for sexual harassment carried out by their employees in the course of their employment.
The new legislation extends this protection by creating a mandatory duty on employers to take reasonable steps to protect workers from harassment from other employees and workers and also from third parties such as clients, customers, and suppliers. Before the 2023 Act, there was no proactive obligation on employers to take reasonable steps to prevent sexual harassment.
The 2023 Act requires employers to take reasonable steps to prevent the sexual harassment of employees during their employment. The duty sits alongside employees’ existing protections in the 2010 Act.
The Equality Act 2010 (2010 Act) is the main source of legal protections against sexual harassment in the workplace in the UK. Section 26 of the 2010 Act defines sexual harassment as unwanted conduct of a sexual nature that has the purpose or effect of violating a person’s dignity or creating for that person an intimidating, hostile, degrading, humiliating, or offensive environment. Examples of such behaviour can include making sexual remarks about someone’s body, clothing or appearance, sexual comments, and jokes, suggestive looks, staring or leering, propositions or sexual advances, intrusive questions about a person’s sex life, sexual gestures, sexually explicit emails or text messages, displaying pornographic images or unwelcome touching or hugging. It can also be made online including on social media.
A person can be sexually harassed by someone of the same or a different sex. It does not have to be a pattern of behaviour it can be a one-off act or comment. Furthermore, the workplace is not confined to the office or factory.
Joanne Briscoe associate solicitor at Wilkes comments that:
“Staff should feel safe to go to work and the 2023 Act is intended to help ensure that this is the case. Although the 2010 Act already protected workers from sexual harassment, the introduction of the 2023 Act does place a greater onus on employers to take proactive steps to protect their staff from sexual harassment”.
What do employees need to do?
If you are subjected to sexual harassment, you should keep a record of events together with any written documents such as emails and social media posts. If possible, you should speak to HR or a manager and refer to any sexual harassment policy or grievance policy that your employer has in place and if appropriate make a formal complaint. You can also contact Acas for further information.
Employees need to ensure that their behaviour in the workplace is appropriate, or they could face employment tribunal proceedings against them.
What steps do employers need to take?
Employers should ensure that they have updated their policies and procedures following the introduction of the 2023 Act. The 2023 Act does not make it clear what might constitute the reasonable steps that employers should take to prevent sexual harassment. However, steps could include creating an anti-harassment policy and reporting procedure, ensuring that these are clearly communicated to workers, effectively implemented, and monitored and reviewed regularly. Employers should also implement appropriate training, properly investigate complaints, and take action where wrongdoing is identified.
The Employment and Human Rights Commission (EHRC) has published technical guidance to support employers to comply with their proactive obligations to prevent sexual harassment in the workplace together with a short eight-step guide for employers. I consider this an essential read for an employer.
In summary, employers should develop an effective anti-sexual harassment policy and train staff on that policy. The staff needs to know what is acceptable and unacceptable behaviour and what to do if they experience or witness unacceptable behaviour.
Employers need to carry out risk assessments and work out when risks are higher. Christmas parties and client or customer events are obvious risks but there are potentially other more subtle factors, which could increase the risk of sexual harassment such as working in a stressful environment.
Policies and training need to be reviewed and updated.
Joanne Briscoe associate solicitor at Wilkes comments that:
“With the introduction of the new 2023 Act, employers need to ensure that they have an updated sexual harassment policy and that they train and educate their staff so that they know what is acceptable and unacceptable behaviour and what to do if they witness sexual harassment. A policy is a good starting point but it needs to be implemented and followed in practice and policies and training should be regularly updated. Employers must also take any complaint of sexual harassment very seriously and investigate the complaint.”
How Wilkes Can Help
With the introduction of the new 2023 Act, employers need to ensure that they have an updated sexual harassment policy. Wilkes can assist with drafting policies and advising on issues relating to sexual harassment in the workplace. Contact Joanne Briscoe, Associate Solicitor, Employment: on 0121 733 8000 or [email protected], or reach any member of our Employment Team at 0121 233 4333 to see how we can help.
