Sexual Harassment in the Workplace

In the summer of 2024 violence against girls and women was declared a national emergency and crisis by both the College of Policing and the NCPP. This blunt declaration illuminates the harsh reality of what women in our country face, and unfortunately it is not restricted to the streets or their homes; workplaces have also been a silent battle ground for abuse and harassment. The NHS estimate that 1 in 6 males will experience an unwanted or abusive sexual experience in their lifetime, and in March 2020 the Crime Survey for England and Wales estimated that 155,000 men between the ages 16-74 experienced sexual assault (including attempts) in the past year.

A UK study showed that 79% of sexual harassment victims in the workplace never report their occurrences, and it has been revealed that only 15% of women who do report a case of harassment feel their employers would take it seriously.

It is important to note that sexual harassment is any unwanted conduct of a sexual nature, this may be verbal or physical in nature, ranging from inappropriate comments, jokes or gestures of a sexual nature: unwanted touching or advances, request for sexual favours and displaying sexually explicit materials may all potentially constitute to sexual harassment. Treating an individual unfavourably because they rejected or submitted to an unwanted conduct of a sexual nature will also constitute to harassment, the studies and statistics illustrate the importance of a statutory obligation to be placed on employers for the contemporary workplace.

Legal Framework

The new duty for organisations will come into effect on 26 October 2024, which originates from the Worker Protection (Equality Act 2010 amendment) Act 2023. It aims to augment protections against sexual harassment for employees.

Key Points

Proactivity

Employers will be required to be proactive in their implementation of measures to prevent sexual harassment, as well as being reactive to incidents when they occur. The required steps which will be considered reasonable will vary depending on the size of the organisation as well as the resources available to them and the nature of the workplace.

Procedure (Tribunal Powers)

Employment tribunals will also have the power to increase compensation of a claim by 25% in instances where an employer has been found to have failed in their duty of preventing sexual harassment, employers must show that they have ‘taken reasonable steps’ to not be liable for the 25% uplift as compensation for sexual harassment cases can often end up in the tens of thousands of pounds, before the uplift is even applied.

Equality and Human Rights Commission (EHRC)

The EHRC will also have the power to enforce this new statutory duty, this includes investigating any suspected cases of harassment, entering binding agreements with employers, assisting employees with legal proceedings and in some cases they will be able to fine the organisation for their actions in regards to failing to comply with the new duty.

Employers Future Role

As aforementioned, employers must be proactive in the lead up to this statutory change going into effect.

Reasonable steps to consider:

• Conduct initial risk assessment to identify areas of concern, and formulate, as well as implement various measures to address them.
• Review and update any Anti-Harassment Policies that are in place ensuring that they are comprehensive.
• Communicate Policy to all members of staff.
• Provide regular and effective training sessions for all managers and employees on how to identify sexual harassment in the workplace, look at various ways of preventing it from occurring and discussing what behaviours are acceptable and what are not.
• Offer different options of reporting to remove the fear of retaliation and retain a level of trust in the business.
• Ensure reports are handled promptly and effectively in line with the Anti-Harassment Policy.

Omissions of the Legal Duty

It is crucial to understand that the new legal requirement for employers does not address harassment related to other protected characteristics, such as race, religion, or disability.

Moreover, the initial provisions aimed at safeguarding against third-party harassment, such as that by customers or clients, were significantly reduced in the final version of the legislation. Nevertheless, employers should remain vigilant about the risk of third-party sexual harassment and consider measures like placing visible signage for customers and clients to help mitigate this risk.