Parliament is not the only workplace which struggles to effectively tackle sexual harassment at work. The recent scandals of the treatment of Angela Rayner and the recent resignation of a Tory MP following complaints that he watched pornography in the House of Commons are shocking, but sadly not without precedent.

Only last autumn, the Fawcett Society published a report which showed that at least 40% of women experience sexual harassment during their career.  Despite the great strides taken post -#MeToo, it is clear that the problem persists beyond the corridors of Westminster and in some surprising places. What is perhaps more heartening is that there appears to be more appetite for ‘calling out’ the antiquated attitudes and enlightened employers can take heart that they are reducing risk for their business, as well as doing the right thing.

As a refresher, we set out below the key obligations on employers and some practical advice geared at avoiding similar scandals. As a starting point, the Equality Act 2010 provides protection against sexual harassment, which is defined as:

unwanted conduct of a sexual nature … which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant or of violating the complainant’s dignity

The key point for employers is that businesses will be liable for the actions of its employees (and sometimes other third parties) who are found to have harassed members of staff.  Compensation for sexual harassment is uncapped and takes the form of an “injury to feelings” award. Such awards can be significant, depending on the nature and duration of the harassment and the impact it has on the employee.

Recent case law

In the recent Employment Tribunal case of Fricker v Gartner UK Limited an Accounts Executive resigned and brought a claim of sexual harassment against her employer in response to her line manager’s treatment of her. Her claims included that her line manager had threatened to join a dating website, pretending to be someone else, in order to link up and meet her, and that he had made unwelcome sexual advances towards her in a hotel room.

The employer failed in establishing it had done enough to rely on the ‘reasonable steps’ defence and the Tribunal cited the following examples of its reasoning:

  1. Although it did have an ‘Equal Opportunity policy’, its drafting was poor, generalised, outmoded and aspirational.
  2. Training provided to the harasser was “entry-level” and totalled 1 hour and 45 minutes over three years, following which there was little refresher training or update.
  3. The company was unable to give evidence of how similar complaints had been dealt with.
  4. The claimant’s complaint had not been properly addressed.
  5. The employee accused of the harassment was not appropriately dealt with. The employer tried to mislead the Tribunal over the steps it had taken, which the Tribunal labelled “primitive” and “half-hearted”.

Reasonable steps statutory defence

Employers will be liable for such harassment committed by its workers, unless they can show that they took all reasonable steps to prevent such behaviour.  The size and nature of an employer and the resources available to it will be relevant in assessing reasonableness.

In deciding whether a step is reasonable, an employer should consider its likely effect and whether an alternative could be more effective.  An employer is entitled to weigh how effective a step might be against other factors such as the time, cost and potential disruption a step might cause.

Technical guidance for tackling harassment

The Equality & Human Rights Commission (ECHR) has published technical guidance on sexual harassment and harassment at work. This provides legal explanations and practical examples for employers to assist in tackling and responding effectively to harassment.  This includes helpful guidance for employers on what ‘reasonable steps’ they could take to be able to rely on the defence. It suggests that taking steps such as an investigation and disciplinary action, after an act of harassment has occurred, will not be enough on its own to avoid liability.  However, taking remedial action to improve reporting and investigation processes after a previous incident might help to prove it has taken steps to prevent a further incident.

Practical steps

The ECHR’s technical guidance is a helpful starting place for practical steps to tackle sexual harassment.

  • Effective Policies:
    • Implementing an anti-harassment policy which includes:
      • acknowledgement that sexual harassment can include actions outside of a work situation, including on social media
      • an effective procedure for receiving and responding to complaints of harassment.
    • Employers should avoid over-emphasis on how they would deal with malicious complaints within their policies. The ECHR observes that the majority of such complaints are made in good faith and emphasis on malicious complaints may discourage genuine concerns being raised concerns.
    • The ECHR also sensibly points out that attempts to deter malicious complaints also risk genuine complainants being ‘victimised’, which can lead to a separate claim under the Equality Act.
    • Policies should be regularly reviewed, especially in light of any specific incidents, and updated as needed.
  • Publication of the policy:
    • Should be made on both internal and external websites. Sharing it externally will assist in tackling the situation where an absent worker, suffering with stress related to harassment, is unable to access a policy to understand their rights which is only published internally. Publishing it externally can also help to show an employer’s commitment to transparency.
  • Training on the policy and reminders to staff:
    • Training on the policy should be included within an induction process so staff are aware of their obligations and rights and the employer’s procedures from the outset.
    • If the training is to be mandatory, it should be included within the list of mandatory training provided as part of any employee’s contract of employment.
    • Reminders can be circulated in newsletters, staff meetings, on physical and digital noticeboards.
    • It is sensible to remind staff ahead of key events where the risk of harassment increases, such as an office party.
  • Risk assessments should be carried out which identify the risks and the control measures identified to minimis the risks.
  • Where a worker has raised concerns about sexual harassment, confidentiality agreements should not be used to prevent workers from whistleblowing, reporting a criminal offence or doing anything required by law, such as complying with a regulatory duty.
  • Employers should take positive action to improve diversity and inclusion in their workforce. This can help to tackle power imbalances which can lead to sexual harassment.
  • Employers should look at ways to tackle harassment related to other protected characteristics too, such as sexual orientation, race, age, etc.

Changes on the horizon

The government has indicated that it intends to make the EHRC technical guidance into a statutory code of practice.

The government has also pledged to introduce a duty for employers to prevent third-party harassment in the workplace. This will be implemented ‘when parliamentary time allows’, although no sign of it in the recent Queen’s Speech. However, consultees have highlighted the complexity of introducing such protections without the need for an incident to have occurred.

Another of the key changes the government has pledged is extending the time limit for bringing a sexual harassment claim. Currently, individuals have three months from the act of harassment, plus any time spent in ACAS early conciliation, in which to bring a claim. However, there is yet to be any clarity as to what new time limit is to apply, or indeed how the positive duty to prevent harassment will be imposed.

Whilst these changes are awaited, and government remains distracted by its own internal scandals, businesses are well advised to take the lead in tackling sexual harassment in their workplaces.

If you would like further advice tailored to your particular circumstances, please contact us.