Employment

Joanne Leach, Emma Cocker, Samantha Aldridge
September 2024

A recent BBC article highlighted that more than 20 female former employees have come forward to report their experience of sexual assault (and in five cases, rape) whilst working at Harrods.

This is unfortunately the latest in a series of high-profile sexual harassment cases in the workplace. The effect of such behaviour is extremely damaging, not least because of the risk of costly employment tribunal claims against employers, but also because the significant reputational damage inflicted affects the ability of organisations to attract and retain staff, as well as potentially losing them valuable customers. Cases of sexual misconduct undoubtedly affect businesses’ “bottom line”.

What is the law on preventing sexual harassment in the workplace?

While these latest allegations relate to cases of sexual assault and rape, these cases are thankfully rare. What is much less rare is allegations of sexual harassment at work.

Sexual harassment is unwanted conduct of a sexual nature which has the purpose or effect of either violating the person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.

The scope is broad and includes a wide range of behaviours. As the effect of sexual harassment is viewed subjectively (i.e. through the eyes of the victim) it is not uncommon for accused individuals to claim their behaviour was “banter” or, “a compliment” when it was, in fact, sexual harassment.

As well as the accused individual’s responsibility for sexual harassment, employers may also be responsible (or “vicariously liable”) for the conduct of their employees (and in some cases, other third parties such as customers). This can be the case even where they did not condone, or even know, the conduct had occurred.

Legislation will shortly come into force which increases the burden on employers to prevent sexual harassment in the workplace, making it even more important that employers are aware of, and acting in line with, their duties.   

The new duty

The Worker Protection (Amendment of Equality Act 2010) Act 2023 is due to come into force on the 26 October 2024 and creates an anticipatory duty on the employer to take reasonable steps to actively prevent the sexual harassment of their employees; not just to investigate them if they arise.

This is a law which was passed by the last government, but the current government is considering further extending this duty to require employers to take ‘all’ reasonable steps, rather than the reasonable steps that will be required from 26 October 2024.

What should employers do to comply with their new duties?

Having clear sexual harassment policies and procedures, providing anti-sexual harassment training and encouraging a “speak-up” culture are all critical steps for employers. Taking time to consider where the risks lie in a specific working environment, as well as the sector in which the organisation operates will help determine what further action needs to be taken. All of the above should be regularly reviewed and monitored.

Supporting HR managers in dealing with sexual harassment claims is also crucial. They are likely to be the first employee in a senior leadership position to whom such claims are reported and they must be well equipped to deal with allegations appropriately to avoid further potential damage to the organisation.  

What should a business do if a claim of sexual harassment is raised at work?

Any allegations should be properly investigated under an anti-harassment policy or grievance policy and appropriate action should be taken, based on the conduct identified.

Employers that are regulated, such as financial services organisations regulated by the FCA and/or PRA must remember that a failure to investigate and resolve such allegations could lead to regulatory investigations, as well as possible enforcement action.

The behaviour did not take place at their place of work – does this matter?

No. Employers may be liable for sexual harassment committed by their employees ‘in the course of employment’, meaning any place the employee is working, not just their regular place of work. Liability can also attach to acts committed when employees are not working but they are somewhere connected with work. This could include, for example, social drinks after work and Christmas parties.

Creating a culture of acceptable behaviour

It is important that employers create a workplace culture that minimises the risk of sexual harassment. Sometimes sexual harassment can stem from other inappropriate behaviours not being properly investigated and addressed. Turning a blind eye to these behaviours can fail to set the tone as to what is appropriate and inappropriate in the workplace, leading to costly claims against employers.  

If you have any questions on the new duty to prevent sexual harassment, or how to investigate allegations of sexual harassment, or if you require workplace training, please contact a member of our employment team.