In 2023, the Trade Union Congress revealed that 3 in 5 women have experienced sexual harassment in the workplace. While less recently, in 2017, the BBC shared that a fifth of men had also experienced sexual harassment in the workplace.
Every business has the potential for problems with inappropriate employee behaviour. What has changed is the confidence and willingness of employees to speak up about it since more media attention and research has been done on the issue.
This change means that employers and senior management teams now need to be better equipped to understand what sexual harassment is to facilitate a safe space for employees to speak out and undertake regular training to keep up to date with the correct way to approach sexual harassment legislation.
Putting an end to sexual harassment at work
- What is sexual harassment?
- What is the Equality Act 2010?
- What is the Worker Protection Act 2023?
- Navigating the Worker Protection Act
- What does a sexual harassment policy entail?
- What is the Weinstein Effect?
- #MeToo impact on sexual harassment reporting
Senior employees at the Confederation of British Industry (CBI) recently put sexual misconduct back in the spotlight. Several women have accused senior staff members of sexual harassment and misconduct. CBI's internal processes have come under scrutiny after this fresh round of allegations against the organisation.
What is sexual harassment?
Sexual harassment is an issue that affects individuals across various sectors, leading to significant psychological, emotional, and professional consequences. It encompasses a range of unwelcome behaviours, including unwanted advances, inappropriate remarks, and physical assault.
The impact of sexual harassment is profound, causing mental health issues such as anxiety, depression, and PTSD, as well as hindering career progression and creating toxic work environments.
Despite legal frameworks like the Equality Act 2010, which aims to protect individuals from harassment, many victims still face barriers in reporting incidents due to fear of retaliation, stigma, and inadequate institutional responses.
Laws on sexual harassment in the workplace
What is the Equality Act 2010?
For businesses in the UK, the Equality Act 2010 clarifies the rights of those who believe they've encountered harassment. It also clarifies the rights of those they're accusing of harassment. The Act defines harassment as "…behaviour which causes alarm or distress".
In a sexual harassment context, this is specifically defined as behaviour that either violates an individual's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. A person can be in breach if their behaviour intends to cause these reactions.
This behaviour is a serious matter, given that harassment is discrimination under the Act. The Act also imposes a duty on employers to stop such behaviour when identified.
Failure to do this effectively may end in an employment tribunal claim unless the employer can demonstrate they took reasonable steps to prevent harassment.
It's important to respond to allegations quickly, sympathetically and impartially - no matter how senior the position of the accused individual. In terms of policies and procedures, you also need to have a sexual harassment policy in place.
What is the Worker Protection Act 2023?
The Worker Protection Act 2023 will come into force on 26 October 2024. This act is an amendment of the Equality Act 2010, which aims to strengthen existing protection against sexual harassment at work. Employers will need to 'take reasonable steps' to ensure the protection of employees against sexual harassment.
The new duty to prevent sexual harassment in the UK will be enforceable by employment tribunals, which can increase compensation for victims by up to 25% if an employer has breached their duty. Given that the average sex discrimination award in 2022 was £37,607, this uplift can be significant.
Employers should take steps to comply with this obligation, especially those with customer-facing employees, due to the reinstated liability for third-party harassment. Beyond defending themselves by proving they took reasonable steps, organisations should support vulnerable employees.
By October 2024, employers should implement measures such as maintaining a harassment complaint register while ensuring data protection, identifying and mitigating harassment risks for different roles, updating and promoting anti-harassment training, and installing visible signs to report harassment.
Navigating the Worker Protection Act
Our recent webinar saw partners from Clyde & Co, Chris Fletcher and Chris Holme, with the Group Head of HR at Walker Crips, Kameka McLean, unpack the prevention of sexual harassment at work. This discussion revolved around the new positive duty on employers to prevent sexual harassment, third-party harassment and liability and compensation uplift.
The current state of sexual harassment in the workplace remains a significant concern, as highlighted by a 2023 TUC poll revealing that 58% of women have experienced harassment at work. The issue is particularly prevalent among younger workers, with 36% of individuals aged 18-34 reporting that they have faced sexual harassment, abuse, or violence from third parties while on the job.
Despite these alarming figures, only one in three women who experience sexual harassment report the incidents to their employers, reflecting a substantial gap in addressing and resolving these issues. This indicates that workplace cultures may still struggle to provide safe, supportive environments where individuals feel empowered to speak out against harassment.
A positive legal obligation on employers
The Worker Protection Act 2023 introduces a proactive approach to preventing sexual harassment. There is now a legal obligation on employers to take reasonable steps to prevent sexual harassment.
We asked the attendees how prepared they felt for this new duty, and the results reflect a degree of confidence, which is encouraging.
Sexual harassment at work is defined under the Equality Act 2010 as unwanted conduct of a sexual nature that violates an individual's dignity or creates an intimidating, hostile, degrading, or offensive environment. For behaviour to be classified as harassment, it must first be deemed "unwanted" by the recipient.
This excludes consensual relationships of a sexual nature. The conduct must also be sexual in nature, which can encompass various actions, such as inappropriate comments or physical gestures, such as hugging. It’s important to apply common sense when evaluating such behaviour. Even if the person engaging in the behaviour does not intend to violate another's dignity, if their actions have this effect, it constitutes sexual harassment. In such cases, the victim’s feelings and the reasonableness of their reaction must be considered.
Employers are vicariously liable for acts of sexual harassment committed by their employees during the course of their employment, including during work-related social events like drinks after work. However, employers can defend themselves by proving they have taken "all reasonable steps" to prevent harassment. This is, however, an extremely difficult defence to establish and many employers fail to make this defence.
The introduction of the Worker Protection Act has increased this responsibility by placing a positive legal duty on employers to take reasonable steps to protect employees from harassment. Failure to fulfil this duty could lead to a 25% increase in compensation awarded by tribunals, making it critical for employers to actively safeguard their workplaces and demonstrate these efforts to employees and stakeholders.
Impact of sexual harassment at work
Beyond employment law, criminal offences such as stalking and sexual assault, as well as health and safety requirements, further underline the necessity for employers to address harassment at work.
Sexual harassment can have a devastating personal impact on individuals, causing emotional distress and creating an intimidating environment that discourages them from coming to work. It also affects witnesses and can have a lasting impact on the accused, highlighting the need for complaints to be handled swiftly and sensitively.
Inaction or mishandling of sexual harassment claims can also severely damage an organisation’s reputation and legal standing. From a broader perspective, sexual harassment impacts overall employee well-being and workplace culture.
Although sexual harassment may often be viewed through the lens of men behaving inappropriately towards women, it can affect people of all genders and sexual orientations, including men against men, women against men, and women against women.
This reality requires a cultural shift in how sexual harassment is understood and addressed, as it is not confined to any one group. With evolving societal norms and increased accountability, organisations must adapt and take greater responsibility to create inclusive, respectful environments that prevent harassment and promote positive workplace cultures.
Practical steps for employers
Under the new Worker Protection Act, employers must take proactive steps to address sexual harassment by fostering a culture of zero tolerance and open communication. This means embedding zero-tolerance policies across the organisation and creating a workplace where employees feel empowered to report inappropriate behaviour without fear of retaliation.
Employers should encourage collective accountability, hold bystanders responsible for intervening when they witness harassment, and emphasise that sexual harassment is everyone’s responsibility.
Clear definitions of sexual harassmentand examples of unacceptable behaviours are essential to ensuring accountability at all levels. The new legal duty also requires active measures, meaning employers must go beyond policy creation and take tangible steps to prevent sexual harassment.
Employers need to implement comprehensive sexual harassment policies that engage staff, ensure ongoing monitoring, and promote regular reporting. Establishing a clear, anonymous reporting channel and a case management system for handling complaints is crucial.
Policies must be updated in accordance with the new legal requirements, and there should be a strong focus on inclusion and diversity. Managers' specialised training should be regularly updated to keep pace with developments.
Additionally, third-party sexual harassment must be addressed, with sexual harassment risks included on risk registers and a zero-tolerance approach communicated to external parties. Ensuring that all employees and third parties understand there is a non-retaliation policy will help build a culture of accountability and support.
Dealing with sexual harassment claims
Employers should recognise that Employment Practices Liability (EPL) cover can help shield them from potential claims related to workplace harassment. When employees take leave due to mental health issues linked to harassment, this insurance can provide crucial support.
Employers should notify their insurer as early as possible, as employment tribunal cases can often trigger personal liability claims, which might otherwise escalate into costly litigation. In fact, a significant portion of mental health claims—three out of five—stem from employment tribunal cases related to the Equality Act.
Failing to address these claims promptly can lead to substantial payouts, as demonstrated by cases costing millions of pounds. Employers must also ensure they are mindful of the accused’s well-being during investigations, as suspensions can also lead to mental health issues. Early recognition of potential personal injury claims is key, as these can significantly affect future insurance premiums.
What should a workplace sexual harassment policy include?
A company's sexual harassment policy should include:
- Your position on harassment – this is a clear statement that the company will not tolerate harassment and will take disciplinary action against anyone who's found guilty of such behaviour towards a colleague. A statement such as this should serve its purpose to a certain degree as a deterrent.
- Clear procedures for raising claims – firstly, employees must understand how they can raise concerns and the steps you'll take. Also, they should look to gather the sorts of evidence they believe harassment is taking place.
- The degree of support individuals will receive if a claim is made - for example, the right to union representation, HR representation, or any independent support or counselling services that employees may have access to.
- The possible consequences for the person accused of harassment – this covers what could happen if they're found guilty, but also for the person bringing the claim if this is indeed found to be malicious or not in good faith.
Remember that your employees need to be aware of your workplace harassment policy and understand what constitutes harassment to ensure compliance. If you do not, be prepared for severe financial and reputational consequences.
What is the Weinstein Effect?
In February 2020, after a lengthy trial, Hollywood movie producer Weinstein was handed a 23-year jail sentence for his predatory sexual behaviour.
Recently, Weinstein was sentenced to an additional 16 years behind bars after he was convicted of rape and three counts of rape and sexual assault against a European model and actress who testified anonymously. This effectively puts him in prison for the rest of his life.
The #MeToo campaign gained momentum and then gave women the support and encouragement to share their own experiences of sexual harassment.
The #MeToo movement led to 6 other convictions and five charges of prominent and influential figures in what is now known as the 'Weinstein Effect'.
Sexual harassment convictions since the #MeToo movement
- Nxivm cult leader Keith Raniere - A Brooklyn federal court sentenced him to 120 years in prison after his conviction in June 2019 of sex trafficking, conspiracy, sexual exploitation of a child, racketeering, forced labour and possession of child pornography.
- Actress Allison Mack - Pleaded guilty in April 2019 to racketeering and racketeering conspiracy charges for recruiting women to the sex cult, Nxivm.
- Comedian Bill Cosby - In 2018, he was found guilty of 3 counts of aggravated assault for drugging and sexually assaulting a woman in 2004. His sentence was three to 10 years in state prison. He served more than 2 of these years before his sexual assault conviction was overturned by Pennsylvania's Supreme Court.
- French photographer Jean-Claude Arnault - In 2018, he was put in jail for raping a woman in 2011.
- USA Gymnastics national team doctor Larry Nassar - In 2018, he was found guilty on 3 counts of sexual assault and sentenced to 300 years. More than 330 girls and women claimed Nassar abused them.
- Former Michigan State University dean William Strampel - Found guilty on 2 counts of "wilful neglect of duty" and 1 count of felony misconduct relating to the Nassar case (Strampel was Nassar's boss). He received a concurrent sentence of 1 year in August 2019.
#MeToo impact on sexual harassment reporting
According to the TUC, 7 in 10 (68%) people think the #MeToo movement has allowed people to be more open about sexual harassment. This number is highest amongst women (72%) and young people (78%).
However, the TUC also says that despite higher levels of awareness, cases of sexual harassment remain alarmingly high. Their research found that more than half (52%) of women – and nearly two-thirds (63%) of young women aged 18-24 years old – have experienced sexual harassment at work.
According to a recent poll conducted by STUC Women’s Committee, 45% of women have experienced sexual harassment at work. Furthermore, 85% of women surveyed say that their report was not taken seriously or dealt with appropriately by their employer. As far as we have come, there is still a way to go.
Learn more about sexual harassment in the workplace
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