Allegations relating to sexual harassment have increasingly made the headlines in recent years – McDonalds has received 407 employee complaints since July 2023 and a toxic culture of sexual assaults, harassment, racism and bullying has been revealed. Pizza Hut has also recently been in the news – an employment tribunal ruled that two workers had been sacked for speaking up about being sexually harassed and were compensated as a result.
Legal protection for employees
Under the Equality Act 2010, employees and workers are protected from harassment related to a ‘protected characteristic’ (age, disability, gender reassignment, race, religion or belief, sex or sexual orientation), as well as sexual harassment, which is defined as:
“unwanted conduct of a sexual nature, which has the purpose or effect of violating your dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment”.
Such conduct can include:
• sexual comments or jokes,
• displaying sexually graphic images,
• suggestive looks,
• propositions and sexual advances
• asking intrusive questions about a person’s private or sex life or a person discussing their own sex life.
In addition, a new law aimed at preventing sexual harassment has recently received Royal Assent. The Worker Protection (Amendment of Equality Act 2010) Act 2023 will introduce a new duty on employers to take ‘reasonable steps’ to prevent sexual harassment.
What does this mean for employers?
The new obligation under the new laws means that if an employee succeeds in a claim for sexual harassment and the employer is found to have not taken reasonable steps to have prevented it, an employment tribunal will be able to uplift the compensation by 25%. Importantly, this uplift will apply to all the compensation that has been awarded for any type of harassment as part of the employee’s claim. This therefore has a significant potential impact on the quantum that can be awarded in harassment claims.
It is also important to be aware that whilst the new law does not include the suggested express requirement to prevent third party harassment (from clients or customers or suppliers), employers may still be liable under the existing legislation if they fail to adequately deal with complaints from employees relating to third party harassment.
Key steps for employers
This new legislation, coupled with the damaging revelations from McDonald’s, serves as a stark reminder to businesses of the importance of taking proactive steps to prevent incidents of harassment, discrimination and bullying.
As a starting point, employers should ensure that they have adequate anti-bullying and harassment policies in place which should:
• confirm who is protected,
• define sexual harassment,
• give clear examples of it,
• set out a clear and effective reporting structure for receiving and responding to complaints,
• confirm that disciplinary action will be taken for breaches of the policy, which could include dismissal.
While the final version of the new Act abandoned introducing employer liability for third-party harassment, Equality and Human Rights Commission guidance states that third-party harassment should be addressed in such policies.
Simply having these policies in place, however, will not be enough to protect employees and stave off claims and liability. Employers should be taking proactive steps to mitigate the risks by:
• regularly reviewing and refreshing policies and reporting structures,
• running regular training sessions with employees,
• conducting regular workplace reviews to ensure that the policies are understood and the protective measures in place are effective.
Employers should also assess whether there are any risks that might increase the likelihood of sexual harassment and what steps can be taken to minimise them.
For example, as we are in the lead up to Christmas, employers may be exposed to greater risks at work-related social events due to excessive alcohol consumption. Employers should therefore assess such risks and take steps to address them, for example by limiting alcohol and/or reminding staff of the standards expected of them.
Employers should ensure that any complaints are taken seriously, actioned immediately and, in so far as possible, dealt with confidentially.
What should you be doing now?
Although the law does not change until October 2024, you should take steps now to ensure that you are well placed to show you are taking reasonable steps to prevent sexual harassment. This will also help you to show that you have taken all reasonable steps to prevent harassment of any kind, which is a valuable part of DE&I initiatives as well as helping to defend claims.
Any queries at all, email nicola.goodridge@goodhr.co.uk or call +44 07917 878384