Sexual Harassment.

It has long been the case that any employee who has been sexually harassed by a colleague can bring a claim against their employer, and the perpetrator, in the employment tribunals – and the employer will be liable unless it can demonstrate that they have taken all reasonable steps to prevent the harassment occurring.

However, in addition, employers are now subject to a positive duty to take reasonable steps to prevent sexual harassment of their staff in the course of their employment, not only from other people at work, but also third parties.

If an employment tribunal decides an employer is liable for sexual harassment and finds that the employer has failed in its duty to prevent it, it may increase the award of compensation by up to 25%.

The preventive duty is both anticipatory and ongoing. Employers need to take steps to prevent sexual harassment taking place, and further measures to prevent it happening again where it discovers that it has taken place.

What is sexual harassment?

Sexual harassment is any unwanted physical, verbal or non-verbal conduct of a sexual nature that has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. It also includes treating someone less favourably because they have submitted or refused to submit to unwanted conduct of a sexual nature in the past. A single incident can be enough to constitute sexual harassment.

A person can be sexually harassed by someone of the same or a different sex, and may be sexually harassed even if they were not the intended target. For example, an employee of any sex may be sexually harassed if they see pornographic images displayed on a colleague's computer in the workplace regardless of the sex of the people in the images, the sex of the person displaying the images and whether or not the person displaying the images intended that they see them.

Examples of sexual harassment include:

• Sexual comments or jokes
• Displaying sexually graphic pictures, posters or photos
• Suggestive looks, staring or leering
• Propositions and sexual advances
• Making promises in return for sexual favours
• Sexual gestures
• Intrusive questions about a person’s private or sex life, or a person discussing their own sex life
• Sexual posts or contact on social media
• Spreading sexual rumours about a person
• Sending sexually explicit emails or text messages
• Unwelcoming touching, hugging, massaging or kissing

It does not matter whether the harasser intended to create an intimidating, hostile, degrading, humiliating or offensive environment – the effect is assessed on how this behaviour is perceived.

Duty to take reasonable steps

What steps are reasonable for an employer to take to prevent sexual harassment will vary from employer to employer and will depend on factors such as:

• The employer’s size and resources
• The sector the employer operates in
• The working environment including the risks present in the workplace, the nature of any contact with third parties and the frequency
• The likely effect of taking a particular step and whether an alternative step could be more effective
• The time, cost and potential disruption of taking a particular step, weighed against the benefit it could achieve
• Whether concerns have been raised with an employer that sexual harassment has taken place
• Compliance with any relevant regulatory standards, such as those set by the Financial Conduct Authority or General Medical Council
• Whether steps taken appear to have been effective or ineffective

In the event of a claim, whether an employer has taken reasonable steps will be determined objectively by the employment tribunals according to the facts and circumstances of the particular case.

Risk assessment

The Equality and Human Rights Commission considers risk assessments an essential tool for employers to assess the risk of sexual harassment in their workplace, and indeed that an employer is unlikely to be able to comply with the preventative duty unless it carries one out. Employers will need to anticipate scenarios of when their staff may be at risk of sexual harassment, and take action to prevent it taking place. Examples of potential risks include:

• Power imbalances
• Job insecurity
• Lone, isolated and night working, and working alone with a third party
• Out of hours working
• The presence of alcohol
• Customer facing duties
• Lack of diversity
• Attendance at events outside of the usual working environment, e.g. training, conferences or work-related social events
• Socialising outside work
• Social media contact between workers
• A lack of policies or procedures to prevent sexual harassment
• A failure to respond appropriately to previous reports of sexual harassment

We can provide you with a template risk assessment or draft one bespoke to your organisation.

Policy

We recommend employers have an effective sexual harassment policy in place, clearly setting out what conduct is inappropriate, how it can be reported and the process that will be followed in the event of complaints.

This can be incorporated within a wider anti-harassment policy or be free-standing.

We can provide you with a template policy or draft one bespoke to your organisation.

Training

Regular staff training, and evidencing that it has been provided, is an essential element of discharging the preventative duty.

We recommend using well prepared online resources as an effective and cost-efficient method of delivery, not least because they can be made accessible to staff at times convenient to them and can automatically generate a record to demonstrate that the training has been provided.

Other measures

Properly-performed risk assessments will identify other appropriate means of discharging the duty to prevent sexual harassment, such as displaying signage at the entrance to buildings, including notices on websites, including provisions in contracts, and setting up recorded telephone messages.

For more information and/or advice, please contact the Employment Department.