Sexual Harassment in the Workplace

Sexual Harassment

This note provides a comprehensive overview of sexual harassment in employment under the Equality Act 2010 (EqA 2010). It explains the statutory definition of sexual harassment, the employer's duty to prevent it, and practical steps employers can take to minimise risk and address allegations. It also covers considerations for employees bringing claims and employers defending them, as well as the use of confidentiality clauses and future reforms.

Sexual Harassment at Work

Section 26 of the EqA 2010 prohibits three types of harassment, including sexual harassment under section 26(2). This note focuses on sexual harassment and less favourable treatment for rejecting or submitting to unwanted conduct of a sexual nature under section 26(3). The Equality Act 2010 implemented the prohibition against sexual harassment as set out in the Equal Treatment Directive (2006/54/EC) in Great Britain.

For the purposes of the EqA 2010, an "employee" is broadly defined to include job applicants, workers, employee shareholders, and certain self-employed individuals whose contracts require personal work.

What is Sexual Harassment?

Sexual harassment occurs when both:

1. A engages in unwanted conduct of a sexual nature.

2. The conduct has the purpose or effect of either violating B's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

Sexual Harassment: Unwanted Conduct

The term "unwanted" means unwelcome or uninvited, and does not require an express objection to be made for conduct to be deemed unwanted. A single incident can constitute harassment. Conduct that was previously welcomed can become unwanted, especially after a consensual relationship ends. Employers cannot "test the water" to see if conduct is objectionable. Even if an employee participates in "banter" as a coping strategy or has tolerated conduct for years, it can still be considered unwanted.

Example

A supervisor grabbing a former consensual partner's bottom after she ended the relationship is unwanted conduct of a sexual nature. In Smith v Renrod Ltd, a tribunal found a manager's sexually explicit comments to a sales executive were unwanted, even though a culture of sexual banter existed, acknowledging it's harder for employees to deal with and complain about a manager's behaviour.

Sexual Harassment: Conduct of a Sexual Nature

This encompasses a wide range of behaviours, including sexual comments/jokes, displaying graphic images, suggestive looks, propositions, sexual advances, intrusive questions about private life, sexual social media contact, spreading rumours, sending explicit messages, and unwelcome touching. Sexual harassment is not always motivated by sexual interest; it can be used to humiliate or belittle.

Example

A male worker pasting his female colleague's face onto a pornographic image, even without sexual motivation, is conduct of a sexual nature due to the use of the image. Downloading pornographic images on shared computer screens, even if not directed at the claimant, can be conduct of a sexual nature that undermines dignity.

Sexual Harassment: Purpose or Effect

If the unwanted sexual conduct is shown to have the purpose of violating dignity or creating an adverse environment, the definition of harassment is met, and the reasonableness of B's perception is irrelevant.

If there is no such purpose, the effect on B must be determined by taking into account:

• B's perception: The effect is assessed from the victim's subjective viewpoint; the harasser's intention is irrelevant.

• Other circumstances of the case: This can include the victim's personal circumstances (health, mental capacity, cultural norms, previous experience) and the environment, such as a power imbalance where the harasser is in a senior position.

• Whether it is reasonable for the conduct to have that effect: This is an objective test. If the victim is "hypersensitive" and the offence caused is unintentional, there may be no harassment unless it was reasonable for them to experience those feelings. A tribunal must consider both the subjective perception and objective reasonableness.

• Creating an intimidating, hostile, degrading, humiliating or offensive environment: This refers to a "state of affairs" which may be created by a single incident but whose effects are of longer duration. Factors like whether the conduct was directed at the claimant, the timing of their objection, and frequency are relevant, but not necessarily determinative.

Less Favourable Treatment for Rejecting or Submitting to Harassment

This occurs when:

• A person engages in unwanted conduct of a sexual nature or related to gender reassignment or sex.

• The conduct has the purpose or effect of violating B's dignity or creating an adverse environment for B.

• Because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

This less favourable treatment can arise from rejecting or submitting to harassment from the harasser or a third party.

Example

A shop assistant who rejects a shopkeeper's advances and is subsequently denied a promotion she believes she would have received if she had accepted his advances would have a claim.

Preventing Workplace Sexual Harassment

The Employer's Duty

Taking appropriate steps to prevent sexual harassment is crucial for all employers, both legally and from a business perspective. Failing to prevent it can lead to costly settlements, litigation, reputational damage, adverse effects on recruitment and retention, breach of mutual trust, and regulatory consequences.

Statutory Duty to Prevent Sexual Harassment

Since 26 October 2024, the Worker Protection Act inserted section 40A into the EqA 2010, introducing a duty on employers to take reasonable steps to prevent the sexual harassment of their employees during their employment.

The EHRC has powers to enforce this duty.

• Employment tribunals can award an uplift of up to 25% to an employee's compensation for discrimination if this duty is breached.

• The Employment Rights Bill (ERB) proposes to reintroduce an "all reasonable steps" requirement, which was initially diluted.

• The preventative duty is anticipatory and ongoing, applying to sexual harassment that takes place during employment. What is reasonable varies based on employer size, resources, sector, working environment, and interactions with third parties.

EHRC Guidance and Reasonable Steps

The EHRC has published updated technical guidance and an eight-step guide to help employers. Factors for determining reasonable steps include: employer size and resources, working environment, sector, risks, nature of contact with third parties, likely effectiveness and cost of steps, and whether concerns have been raised.

The EHRC Eight-Step Guide provides key actions:

1. Develop an effective anti-harassment policy: Clear, regularly updated, zero-tolerance policy covering all staff, unacceptable conduct, reporting mechanisms, processes, and support.

2. Staff engagement: Regular one-to-ones, staff surveys, exit interviews, and open-door policies.

3. Assess and take steps to reduce risk: Conduct risk assessments to identify internal and third-party risks.

4. Reporting: Encourage reporting with effective, multiple reporting mechanisms and clear processes.

5. Staff training: Mandatory training for all staff on what constitutes sexual harassment, expected behaviour, and how to complain; additional training for managers on handling complaints.

6. What to do when a harassment complaint is made: Effective investigation procedures, prompt and sensitive handling, sanctioning perpetrators, and providing support.

7. Dealing with third-party harassment: Measures to minimise risk of harassment by third parties.

8. Monitoring and evaluating actions: Regularly evaluate the effectiveness of steps and implement changes.

Recognising the Extent of the Problem

Employers need to understand the prevalence of sexual harassment within their organisation. Surveys show high rates of sexual harassment in UK workplaces, with many incidents going unreported due to fear of not being believed, job risk, victimisation, or inadequate reporting procedures.

Risk Assessment

It is crucial for employers to carry out a risk assessment to identify where sexual harassment is most likely to occur. Risk factors include: power imbalances (especially gender-based), job insecurity, lone/isolated/night working, presence of alcohol, customer-facing duties, lack of diversity, travel, remote working, social media contact, predominant male workforce, a culture of crude "banter," and failure to respond to previous reports. Intersectional risk is also important, as women, disabled people, ethnic minorities, and LGBT individuals are statistically more at risk. Anonymous staff surveys and focus groups are useful tools for gathering data.

Effective Anti-Harassment Policies

Policies should be comprehensive, regularly reviewed, and widely disseminated. They should:

• Confirm who is covered (all staff, including agency workers, volunteers, interns).

• State that sexual harassment is unlawful, will not be tolerated, and may lead to disciplinary action up to dismissal.

• Include clear definitions and examples of unacceptable behaviours, relevant to the working environment.

• Outline multiple reporting channels and a clear complaint procedure, without strict time limits.

• Address third-party harassment, including prevention and response steps.

• Provide contact details for internal and external support services.

• Commit to regular review and monitoring of effectiveness.

Sexual Harassment: Staff Training

Mandatory anti-harassment training should be provided to all staff, ideally as part of induction, and refreshed regularly. It should cover the law, how to report, managers' responsibilities, expected behaviour, and available support. Training for managers should be mandatory and frequent, covering how to handle complaints, maintain confidentiality, prevent victimisation, and provide support. Bystander intervention training is also recommended.

Steps to Encourage Reporting

Employers should focus on addressing barriers to reporting, ensuring victims are listened to, perpetrators are held accountable, and victims have choice and control in the process. Multiple reporting channels, including anonymous options (used alongside named routes), are crucial.

Zero-Tolerance Workplace Culture

A visible and openly communicated zero-tolerance approach from leadership is essential. This should be role-modelled by managers and senior leaders, reflected in formal statements, and prominent in internal and external communications.

Workplace Champions

Appointing senior individuals or trained "champions" to monitor harassment issues, oversee risk assessments, and provide support to victims can be beneficial. Engaging senior male leaders as role models is also important.

Preventing Victimisation

Employers are liable for victimisation unless they take all reasonable steps to prevent it. Procedures to track the progress of those who report harassment or provide evidence are recommended to prevent detriment.

Third-Party Harassment

The preventative duty extends to sexual harassment by third parties (e.g., customers, clients, contractors, patients). While there's no standalone claim for third-party harassment, failure to prevent it can lead to EHRC enforcement action or a compensation uplift in other discrimination claims. Employers should assess third-party risks and take reasonable steps, such as implementing harassment policies, public notices, contractual terms with third parties, and encouraging reporting.

Public Sector Employers, Volunteers, and Interns

Public sector employers have additional duties under the Public Sector Equality Duty (PSED) to give due regard to preventing third-party harassment. While volunteers and interns may not be protected by EqA 2010 employment provisions, they may have recourse under common law, health and safety legislation, or the Protection from Harassment Act 1997. Labour has committed to legislating to protect interns and volunteers.

Investigating Sexual Harassment Allegations

A fair and thorough internal investigation is crucial for resolving complaints, potentially avoiding litigation, and fulfilling the preventative duty. Poor handling can lead to breach of trust and confidence, constructive unfair dismissal claims, vicarious liability, and compensation uplifts.

Appointing an Investigator: The investigator should be suitably trained, ideally with expertise in sexual harassment cases, and understand how to question complainants sensitively. An external investigator may be considered if internal expertise is lacking.

The Investigation Process

• Set and communicate realistic timescales for a prompt but thorough process.

• Ensure clear roles, independence, and objectivity at each stage.

• Do not impose time limits for making complaints.

• Account for sensitivities (e.g., female investigator for sexual assault complaints).

• Investigators must identify facts, questions, and evidence, avoiding inappropriate questioning (e.g., about sexual history).

• Consider reassigning or suspending the alleged harasser during the investigation, rather than the complainant.

• Where evidence conflicts, remember that false allegations are rare, and under-reporting is common.

• Commence disciplinary investigations against perpetrators promptly if evidence emerges.

Right to be Accompanied: Complainants and alleged harassers have a statutory right to be accompanied by a trade union representative or colleague at formal grievance hearings. Employers should consider extending this right to other meetings and, in certain circumstances (e.g., for vulnerable employees or language barriers), to others who can offer emotional support.

Confidentiality and Anonymity

• Maintain confidentiality during the investigation to protect the complainant from gossip. Witnesses should also be informed of confidentiality.

• Confidentiality should not necessarily continue after the process concludes; the outcome should be as transparent as possible, including action taken.

• Anonymity for reluctant witnesses should only be agreed in exceptional circumstances where there is a genuine fear of reprisals, and the alleged perpetrator must be given full details to respond fairly.

Whistleblowing Aspects

A sexual harassment complaint can amount to a protected disclosure, especially if it relates to a breach of legal obligation (e.g., the employer's duty to prevent sexual harassment) or a criminal offence/danger to health and safety. The ERB proposes making all sexual harassment disclosures protected disclosures.

Involving the Police

Consider whether the allegations constitute a criminal offence. The decision to inform the police usually rests with the employee, unless there's an immediate risk of harm. Employers should liaise with the police, but can generally continue their own investigation without awaiting criminal outcomes, as the burden of proof differs. Employers must be aware of potential criminal offences (e.g., perverting justice, concealing evidence) if they do not act appropriately.

Regulatory Issues

Regulators (e.g., SRA, FCA) expect to be informed of sexual misconduct issues early in investigations. They assess how firms handle allegations as part of their "fit and proper" tests for individuals.

Victim Support

Offer appropriate support, including internally trained employees or external counselling. Keep complainants regularly updated.

Dealing with the Alleged Perpetrator

Handle accused individuals sensitively, without presuming guilt. Ensure a consistent approach and provide sufficient information about allegations. Suspension of the accused should be justified and not a knee-jerk reaction.

Investigations After Settlement

Investigations should be carried out regardless of whether a settlement is reached.

Investigating Historical Allegations

Always take historical complaints seriously and investigate as thoroughly as possible, acknowledging potential difficulties like faded memories or unavailable witnesses.

Reluctant Witnesses

Even if an employee doesn't want to pursue a complaint, the employer should still take steps to resolve the matter (e.g., record the complaint, encourage informal resolution, monitor the situation, offer support). Formal action may be necessary if risks of inaction outweigh overriding the complainant's wishes.

Action Following Investigation

If a complaint is upheld, consider managing the ongoing relationship (e.g., support, mediation, redeployment, further training for the harasser). If the harasser is dismissed, assess post-employment issues like references and preventing further contact.

Role of Mediation

Mediation can be useful in sexual harassment cases if voluntary, managed by specialists, and addresses power imbalances. It should not be a first step, but it can offer recognition, apologies, and process improvements not available in tribunals. Mandatory mediation should be avoided.

Settling a Sexual Harassment Claim

Most sexual harassment claims settle before a final tribunal hearing. Care must be taken when drafting settlement agreements, particularly regarding confidentiality clauses and Non-Disclosure Agreements (NDAs).

Confidentiality Clauses/NDAs

NDAs have faced scrutiny for deterring victims.

• Forthcoming Legislation: The Higher Education (Freedom of Speech) Act 2023 (HEFSA) and Victims and Prisoners Act 2024 (VPA 2024) will prevent the use of NDAs in certain circumstances. Government amendments to the ERB also propose voiding NDA provisions that preclude disclosures related to harassment or discrimination.

• Regulatory Considerations for Solicitors: Solicitors must ensure NDAs do not threaten unenforceable consequences (e.g., preventing reporting crimes or co-operating with investigations). They must consider if an NDA is required in each case. The SRA may take disciplinary action against solicitors for inappropriate use of NDAs.

• Best Practice: Ensure NDAs include carve-outs for protected disclosures, regulator disclosures, criminal investigations, and court orders. Avoid warranties that require employees to withdraw complaints or disclose protected disclosures.

• Shift in Approach: Some employers are moving away from NDAs to promote open disclosure and zero tolerance.

• Preventing Disclosure of Future Events: Agreements preventing disclosure of future harassment are unlikely to be legitimate or enforceable.

• Settlement Deadlines: Avoid imposing short deadlines; allow employees sufficient time for legal advice.

Bringing and Defending a Claim

Potential Impact of Worker Protection Act Changes

From 26 October 2024, tribunals can award up to a 25% uplift in compensation where sexual harassment is involved and the employer breached its duty to take reasonable steps to prevent it. This may increase sexual harassment and whistleblowing claims. Claimants may seek disclosure on steps taken by employers to meet the duty. The distinction between conduct related to sex (s26(1)) and conduct of a sexual nature (s26(2)) may become more important.

Jurisdiction

Employment tribunals have exclusive jurisdiction for EqA 2010 claims. Claims can be brought against the employer and/or the individual harasser. Civil court claims (e.g., under PHA 1997 or for personal injury) may also be possible, with longer limitation periods but different cost implications.

Time Limits

Claims must generally be submitted within three months of the act, but this can be extended for "conduct extending over a period" or by early conciliation. The Labour government has committed to extending time limits to six months.

Anonymity and Restrictive Reporting Orders (RROs)

Victims often fear career damage. While the Sexual Offences (Amendment) Act 1992 provides lifetime anonymity for victims of certain sexual offences, not all sexual harassment incidents are covered. RROs can provide anonymity in employment tribunals, potentially for both claimants and alleged harassers, balanced against the public interest.

Giving Evidence

Giving evidence in sexual harassment cases can be stressful. Tribunals should consider procedural adjustments for fearful claimants (e.g., giving evidence in the absence of the harasser, screens, and written answers). Presidential guidance exists for vulnerable parties and witnesses.

Remedies

Compensation can include financial loss, injury to feelings, aggravated/exemplary damages, and uplifts for failure to follow the Acas Code or breach of the preventative duty.

Vicarious Liability and "All Reasonable Steps" Defence

Employers are generally vicariously liable for employees' sexual harassment in the course of employment. However, they can avoid liability if they demonstrate they took all reasonable steps to prevent the harassment. This is a higher bar than the "reasonable steps" duty introduced on 26 October 2024. The mere existence of policies is insufficient; practical implementation is key.

Role of Regulators and the EHRC

Regulators

Many regulators are taking a more prominent stance on sexual misconduct post-#MeToo.

• Financial Services (FCA): Regards sexual harassment as misconduct and considers how firms handle allegations when assessing their "fitness and properness".

• Law (SRA): Sexual misconduct by solicitors can breach principles of integrity and public trust. The SRA issues guidance and can impose sanctions like fines, practice restrictions, suspension, or striking off.

• Medicine (GMC): Sets a zero-tolerance approach to sexual harassment and can refer doctors to tribunals for fitness to practice.

• Higher Education: HEFSA will prevent NDAs in sexual misconduct cases, and providers will need to publish information and provide mandatory training.

• Creative Industries (CIISA): A non-statutory body launched minimum standards to prevent bullying and harassment, including sexual harassment.

• EHRC: Tackling sexual harassment is a key priority. The EHRC has powers to investigate, issue unlawful act notices, enter binding agreements (as seen with IKEA and McDonald's), and seek injunctions.

Criminal Prosecutions

Behaviour constituting sexual harassment under the EqA 2010 can overlap with criminal offences (e.g., sexual assault, indecent exposure, stalking). Private prosecutions are rare. Courts are increasingly viewing workplace sexual offending seriously.

Sexual Harassment: Future Reforms

Following the #MeToo movement and various reports (e.g., WEC, EHRC), there have been calls for significant reforms.

• Mandatory Duty on Employers: The duty to take "reasonable steps" to prevent sexual harassment came into force on 26 October 2024, with proposals to strengthen it to "all reasonable steps" via the ERB.

• Statutory Code of Practice: The EHRC has been asked to produce a statutory code of practice complementing its technical guidance.

• Third-Party Harassment: The Labour government is committed to reintroducing employer liability for third-party harassment.

• Tribunal Time Limits: The Labour government has committed to extending employment tribunal time limits from three to six months for all EqA 2010 claims.

• NDAs: Forthcoming legislation (HEFSA, VPA 2024) and proposed ERB amendments will restrict the use of NDAs in sexual harassment and discrimination cases. There have been calls for a broader ban on such NDAs.

• Volunteers and Interns: Consideration is being given to extending protection from sexual harassment to volunteers.