Protecting Employees from Sexual Harassment – are you ready?

Under the Act, employers will be under a duty to prevent sexual harassment of their employees in the workplace. This duty applies not just in the context of interactions between employees, but also interactions between employees and third parties. This could include customers, clients, and suppliers.

What constitutes sexual harassment? This is defined as unwanted conduct of a sexual nature which has the purpose or effect of violating the individual’s dignity or which creates an intimidating, hostile, degrading, humiliating or offensive environment for them. It is important to note that it’s the effect of the conduct, not just the purpose, which falls within the definition. On that basis, even if a comment was not intended by the speaker to be humiliating or degrading, if that is the effect then it will still constitute harassment.

Employers must take “reasonable steps” to prevent employees from being subject to harassment. This duty has been rowed back from earlier drafts of the Act which required “all reasonable steps”. Quite what steps will be considered “reasonable” remains to be clarified – the Equality and Human Rights Commission will be updating its guidance, which will be helpful to employers as and when it is published.

In the meantime, what should employers be doing?

In terms of interactions between employees, employers should already have in place mechanisms for employees to report unwanted conduct and to be supported when doing so. Employers should also consider providing training for staff around sexual harassment.

The question of preventing sexual harassment by third parties is a lot harder, as to an extent it will involve trying to control the behaviour of the general public. Employees should operate a “zero tolerance” policy when it comes to unwanted conduct and empower employees, for instance, to refuse service to an individual who is sexually harassing them. Employees should also feel safe to report unwanted contact from clients and customers without fear of reprisals.

What if the employer fails to take reasonable steps?

An employee cannot bring a free-standing claim for a failure to take reasonable steps, but if the employee succeeds in a claim that they have been sexually harassed, and the Employment Tribunal finds that the employer did not take reasonable steps to prevent it, the compensation awarded to the employee can be uplifted by up to 25%.