New duty to prevent sexual harassment in workplace
Andrew Egan from Andrew Egan Associates with helpful legal advice for employers
THE Government has recently published a report which states that it will be introducing a new duty requiring employers to prevent sexual harassment in the workplace.
The main areas of importance are:
Introducing a mandatory duty on employers to protect their staff from sexual harassment at work.
Introducing explicit protections for employees from harassment by third parties, such as customers or clients.
Extending the time limits for bringing such claims in the Employment Tribunals from three to six months.
Developing a statutory code of practice on sexual harassment and harassment at work (including delineating what steps employers should take to prevent and respond to sexual harassment, and what can be considered in evidence when determining whether the duty has been breached).
Under current legislation, employers are already expected to take reasonable steps to prevent workplace harassment, but the new legislation will impose a proactive duty on employers to do so.
This will support the existing protection for individuals under the 2010 Equality Act. The Government hopes this will lead to employers being more proactive in preventing workplace harassment and promoting inclusive working environments.
The arrival of the new legislation is unsurprising given the Government’s response to a 2019 consultation on sexual harassment in the workplace, the importance of the issue and the increased scrutiny of employers.
The subject is topical as we have seen several sexual harassment cases hit the headlines this year.
For example, a part-time gym worker won a £6,000 sexual harassment pay-out after she was left feeling ‘uncomfortable’ when she overheard her male colleague bragging about his sex life, and a sales manager who was sent derogatory remarks on a work WhatsApp group chat by senior colleagues won £5,000 in a sexual harassment claim.
Harassment is defined in the 2010 Equality Act as unwanted conduct which has the purpose or effect of violating a person’s dignity or which creates an intimidating, hostile, degrading, humiliating or offensive environment for a person.
Under the Act, an employer can be liable if their staff, clients or suppliers harass an employee, and the employer fails to prevent harassment from occurring.
In terms of what constitutes sexual harassment in the workplace, this entails being made to feel humiliated, offended or degraded on the basis of one’s sex. Importantly, it makes no difference what sex the individual is or the sex of the person doing the harassing. ‘Unwanted conduct of a sexual nature’ covers verbal and physical treatment, like sexual comments or jokes, touching or assault, as well as emails of a sexual nature or pornographic pictures. An employee may also be victimised because they have complained of sex-related discrimination or have supported someone who has made a complaint of sex discrimination.
In addition to an award of damages for actual losses they have suffered, employees who claim sexual harassment can be compensated for injury to feelings.
They have the right to make a claim under the 1997 Protection from Harassment Act through the County Court within six years from the incident(s).
Following the new legislation, Employment Tribunals will expect employers to at least introduce an equality and anti-harassment policy and effective staff training in the workplace.
Employers should also consider whether they are currently complying with their legal duties, such as the requirement to take reasonable steps to prevent harassment and to remedy this if they have not already. Employers should review how their staff report harassment, clarify issues of privacy and confidentiality, handle disclosures in a sensitive manner, train investigators to handle case sensitivity, use the right terminology and keep the victim informed. They should also ensure investigations and procedures are not prejudiced against women or minority groups. Employers should also encourage training, bearing in mind that some workers and workplaces are more vulnerable to sexual harassment including lone, night and part-time workers, those with additional needs, younger workers, workers from sexual minority groups or anyone working in any industry where there are high levels of customer contact, client events or alcohol consumption.
Overall, employers must adopt a zero tolerance approach to sexual harassment both in principle and in practice.
For advice on this subject, call Andrew on 07904 391756 or (01635) 890560.
Overall, employers
“must adopt a zero tolerance approach to sexual harassment both in principle and in practice