Tackling sexual harassment in the workplace

Sexual harassment at work has been prohibited by UK law for decades, yet this kind of conduct and its damaging effects still continue. The startling revelations that have emerged in recent years, including the #MeToo movement, have made it abundantly clear that the problem persists, despite the existence of these legal protections. Everyone should be able to go about their work without the fear of encountering unwanted conduct of a sexual nature.

Below we look at the law on sexual harassment in the workplace, including the employee’s rights and the employer’s obligations, and what steps should be taken by employers to ensure a safe working environment free from harassment in which employee’s feel supported.

Sexual harassment law

Sexual harassment law in the UK is governed by the Equality Act 2010. Specifically, the Act prohibits unwanted conduct of a sexual nature where this has the purpose or effect of violating an individual’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive working environment for that person.

It is also unlawful to treat a person less favourably because they have either rejected or submitted to unwanted sexual conduct, or conduct related to sex or gender reassignment, that has had this same purpose or effect.

In deciding whether conduct has had the effect of violating an individual’s dignity or creating a harmful working environment for them, this will depend on the perception of the person subjected to the unwanted conduct and whether it is reasonable for the conduct to have had that effect. This means that sexual harassment can be unlawful, even if it is not intended. For example, it’s not uncommon for sexual innuendo to tip over into sexual harassment or for flirting to cross the line from being ‘a bit of fun’ to unwelcome conduct of a sexual nature.

Examples of sexual harassment include:

• gesturing or making sexual remarks about someone’s physique, clothing or appearance
• asking questions about someone’s sex life or discussing sexual relations
• telling sexually offensive jokes or making jokes about someone’s sex or sexual orientation
• displaying or sharing pornographic images or other sexual content
• touching someone against their will or making unwelcome sexual advances
• requesting sexual favours and various forms of sexual assault.

Sexual harassment can happen face-to-face, over the telephone, by email, via online messaging tools or on social media. The prevalence of working from home or hybrid working following the coronavirus pandemic hasn’t necessarily limited the incidence of sexual harassment. This can still take place, whether at the office or at home. The harassment might arise from a single incident or a persistent pattern of behaviour, and can often be behaviour that’s not always obvious.

This type of behaviour, although predominantly affecting women in the workplace, can also impact male, non-binary or gender fluid employees. Sexual harassment can be committed by anyone of the same sex, a different sex or anyone of any gender identity or sexual orientation. This could be, for example, a co-worker, a line manager or anyone that an employee comes into contact with because of their job, such as a customer, client or member of the public.

Employee rights & protections against sexual harassment at work

By law, employees have the right not to be sexually harassed in the workplace, or treated less favourably because they’ve been subjected to sexual harassment, or harassment related to sex or gender reassignment, and have either submitted to or rejected this unwanted conduct.

The statutory protection against sexual harassment in the workplace set out under the 2010 Act applies equally to individuals who have an employment contract, an apprenticeship contract or a contract to personally do work. This includes workers, contractors, certain self-employed people and job applicants. The workplace protections also apply to a variety of wider working relationships beyond employment, such as partners, public office-holders and those seeking or undertaking vocational training.

In circumstances where a protected individual has experienced unwanted conduct of a sexual nature, or less favourable treatment because of how they’ve responded to any harassment, a claim can be made to an employment tribunal. Even where the sexual harassment is not directed at a particular individual, but they’ve witnessed this type of behaviour taking place at work, and because of what they’ve seen this has violated their dignity or harmed their working environment, a tribunal claim can still be made.

Additionally, a protected individual who has experienced or witnessed sexual harassment will be afforded protection from victimisation. This is where a person is treated unfairly or subjected to a detriment at work because, for example, they’ve complained about unwanted conduct of a sexual nature, or instigated or threatened legal proceedings because of this.

Employer obligations to prevent sexual harassment

Sexual harassment at work is against the law in the UK, where employers can be legally held responsible for the sexual harassment of their staff if the employer did not take steps to prevent the harassment from taking place. This is because employers may be vicariously liable for unlawful acts carried out by their employees in the course of their employment.

The liability for sexual harassment applies regardless of whether or not the employer has approved, or is even aware of, their employees’ actions, although liability can be avoided provided the employer can show all reasonable steps were taken to prevent the perpetrator from acting unlawfully. Essentially, this means that employers must do all they reasonably can to protect staff from sexual harassment and take proactive steps to prevent it from happening.

Equally, employers have a statutory duty of care to ensure the wellbeing of their employees. If an employer fails in this duty, this could lead to a serious breach of the implied term of mutual trust and confidence.

If an employee feels they have no other choice but to resign because of this, the employer could face a claim for constructive dismissal on grounds of breach of contract. This means that the employer must also take steps to prevent unwanted conduct of a sexual nature from anyone the employee comes into contact with because of their job.

How to prevent sexual harassment in your organisation

The fact that sexual harassment remains prevalent in UK workplaces is often either because employers are unaware of their legal responsibility under UK sexual harassment law or they don’t know how to effectively prevent this form of unlawful conduct.

Below we set out some best practice steps on how to manage sexual harassment complaints and minimise the risk of unwanted conduct of a sexual nature in the workplace:

Minimising sexual harassment

By taking positive and proactive steps to make the workplace safer for everyone, this can help to prevent sexual harassment from happening in the first place. Putting in place an effective anti-harassment policy and providing sexual harassment training are both key preventative steps that can be taken by an employer to help minimise the incidence of sexual harassment.

Sexual harassment policy

One of the most important steps in the effective prevention of sexual harassment in the workplace is to foster a working environment in which staff feel able to make complaints without fear of reprisals. Employees should feel confident that any complaint will be taken seriously and will not, of itself, lead to unfair treatment at work. Victims of sexual harassment or anyone involved in a sexual harassment complaint should also feel fully supported.

By putting in place a written anti-harassment policy — setting out the organisation’s commitment to deal with sexual harassment, examples of what constitutes unlawful conduct, the procedure for making and managing a complaint, plus the potential consequences for the perpetrator — this will encourage victims to speak out.

The threat of dismissal and criminal prosecution will also help to reduce the incidence of sexual harassment. In this way, potential perpetrators of unwanted sexual conduct will be aware that any allegations will be thoroughly investigated and action taken, where employers should aim to have a zero tolerance culture of sexual harassment in the workplace.

Managing sexual harassment complaints

The way in which a sexual harassment complaint is handled will depend on the nature and severity of the complaint. For very minor incidents, such as friendly banter, an informal discussion with the person responsible can often lead to a greater understanding and an agreement that the behaviour will cease. However, given the inherently serious nature of sexual harassment, formal grievance and disciplinary procedures will often be necessary.

All complaints of sexual harassment must be taken seriously. In all cases, the employer should fully investigate the complaint thoroughly, where the investigation must be handled in a way that’s fair and sensitive to everyone involved, respecting the confidentiality of all parties.

Where a formal approach is necessary, the employer must follow a full and fair procedure for handling complaints in accordance with the Acas Code of Practice on disciplinary and grievance procedures, taking action where needed. The employer must also take all reasonable steps to prevent the sexual harassment from happening again.

The employer should keep an accurate written record of the allegations made, the investigation undertaken and what action was taken in response. In this way, the employer can show that they’ve discharged their statutory duty to ensure the wellbeing of their staff, and followed a fair procedure where formal disciplinary action is taken against the accused.

Sexual harassment training

Any person who sexually harasses someone at work is responsible for their own actions. In some cases this could result in disciplinary action and even dismissal. It could also lead to criminal prosecution. The provision of regular training on sexual harassment can go a long way to educating staff as to their own individual and collective responsibilities around sexual harassment. This can include the potential consequences of their own actions, the impact on the victim, as well as the impact on the wider workforce.

Where sexual harassment at work goes unchecked or is badly handled, this can create serious problems for the business that can impact everyone, including conflict in the workplace and poor working relationships, reduced individual and team morale, reduced employee engagement, increased absenteeism and the loss of valuable members of staff. It’s important that staff are encouraged to be both individually and collectively responsible for preventing sexual harassment, and for providing a safe and supportive environment for others.

Equally, employers should ensure that those responsible for managing complaints are trained in how best to handle these. Given the serious and sensitive nature of sexual harassment complaints, allegations must be handled promptly, fairly, objectively and confidentially. The line manager, supervisor or any other person designated to deal with a complaint, must fully understand what constitutes unlawful conduct, what steps must be taken to address this and what further steps can be taken to prevent any recurrence.

Reform of sexual harassment law

Having recently published its long-awaited response to the 2019 consultation on sexual harassment in the workplace, the government is now proposing to reform sexual harassment law in the UK.

The report was published on 21 July 2021 and includes a number of plans to tackle the issues of workplace sexual harassment:

• A new duty will be introduced for employers to prevent sexual harassment in the workplace, including preventing third-party harassment in the workplace,  “as soon as” parliamentary time allows.
• A defence may be available to employers that have taken “all reasonable steps” to prevent the harassment.
• Explore extending the time limit for bringing any kind of claim under the Equality Act, likely to six months.
• Consider further enforcement action in sexual harassment cases by the Equality and Human Rights Commission (EHRC).

The precise details of the new duty on employers to prevent sexual harassment remain unclear, but any legislative changes are likely to be significant for UK employers, including the introduction of a new proactive duty requiring employers to prevent sexual harassment.

However, a new proactive duty would reformulate the existing legal duty on employers —under which an employer is liable only if an incident occurs and they’ve failed to take all reasonable steps to prevent this — shifting the point of liability to emphasise the importance of taking preventative steps before an event occurs. In this way, an employer may be held to account through strategic enforcement action by the Equality and Human Rights Commission for failing to take action without the need for an incident to have taken place.

Given the increased pressure on employers to implement robust measures to prevent sexual harassment, including the provision of an anti-harassment policy and staff training, expert legal advice should be sought as soon as possible from specialist sexual harassment lawyers. By taking preventative action now, employers can avoid falling foul of any new law.

Sexual harassment at work FAQs

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Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.