A Guide To Sexual Harassment In The Workplace
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Sexual harassment remains a significant issue for employers and employees alike. Creating a safe, respectful, and inclusive workplace is not only essential for employee wellbeing but is also a legal obligation.
Recent changes to employment law have strengthened employers’ responsibilities, making it more important than ever to take proactive steps to prevent sexual harassment in the workplace.
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What is Sexual Harassment?
Under the Equality Act 2010, sexual harassment occurs where a person engages in unwanted conduct of a sexual nature that has the purpose or effect of:
- Violating another person’s dignity; or
- Creating an intimidating, hostile, degrading, humiliating or offensive environment.
The conduct may be physical, verbal or non-verbal and can occur in person, online, through social media, by email, text message, or any other form of communication.
Examples include:
- Unwanted touching or physical contact.
- Sexual comments, jokes or innuendo.
- Displaying or sharing sexual images.
- Sending inappropriate messages.
- Repeated unwanted advances or requests for dates.
- Comments about a person’s appearance that are sexual in nature.
- Behaviour that creates an uncomfortable or hostile working environment.
Whether conduct amounts to harassment will depend on the circumstances, including the perception of the individual affected, the wider context, and whether it was reasonable for the conduct to have that effect.
The Employer’s Legal Responsibilities
Employers can be held liable for acts of sexual harassment committed by their employees during the course of employment, unless they can demonstrate that they took reasonable steps to prevent the behaviour.
New Duty to Prevent Sexual Harassment
Since 26 October 2024, employers have been under a positive legal duty to take reasonable steps to prevent sexual harassment of workers in the course of their employment.
This represents a shift from simply responding to complaints after they arise to taking proactive measures to prevent harassment from occurring in the first place.
Employers should not assume that having a policy alone is sufficient. They should actively assess workplace risks and implement measures designed to reduce them.
Failure to comply with this duty can result in an Employment Tribunal increasing compensation awarded in a successful sexual harassment claim by up to 25%.
What Are “Reasonable Steps”?
What is reasonable will vary depending on the size and nature of the organisation, but employers should consider:
- Maintaining clear anti-harassment and dignity-at-work policies.
- Providing regular and effective training for all staff.
- Delivering additional training for managers.
- Carrying out workplace risk assessments.
- Encouraging a culture of respect and inclusion.
- Providing clear and accessible reporting channels.
- Investigating complaints promptly and fairly.
- Monitoring workplace culture and reviewing policies regularly.
- Taking appropriate disciplinary action where misconduct is identified.
Training should be refreshed periodically and should not be treated as a one-off exercise.
Handling a Complaint
When a complaint of sexual harassment is raised, employers should:
1. Take the Complaint Seriously
Every complaint should be considered carefully and dealt with promptly, regardless of the seniority of those involved.
2. Conduct an Appropriate Investigation
Investigations should be fair, impartial and proportionate. This may involve:
- Interviewing the complainant.
- Speaking to witnesses.
- Reviewing documents, emails, messages or CCTV footage where relevant.
- Maintaining detailed records.
3. Protect Those Involved
Employers should consider temporary measures where appropriate, such as amended reporting lines, alternative working arrangements, or temporary suspension where justified.
4. Maintain Confidentiality
Information should only be shared with those who need to know in order to investigate and resolve the matter.
5. Follow Internal Procedures
Any disciplinary process should comply with company policies and the ACAS Code of Practice on Disciplinary and Grievance Procedures.
Third-Party Harassment
Employers should also consider risks arising from customers, clients, contractors, suppliers and other third parties.
Although every workplace is different, employers should assess whether employees are exposed to situations where inappropriate behaviour by third parties could occur and take reasonable steps to minimise those risks.
Creating a Positive Workplace Culture
Preventing harassment is about more than policies and procedures. Employers should strive to create a workplace where:
- Employees feel respected and valued.
- Concerns can be raised without fear of retaliation.
- Managers lead by example.
- Unacceptable behaviour is challenged.
- Diversity and inclusion are actively promoted.
A positive workplace culture can significantly reduce the risk of harassment occurring and improve employee engagement and retention.
Frequently Asked Questions (FAQs)
Can a single incident amount to sexual harassment?
Yes. A single incident may be sufficient if it has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
Does the individual need to tell someone their behaviour is unwelcome?
No. While an objection may help demonstrate that conduct was unwanted, there is no requirement for an individual to expressly state that behaviour is unwelcome before it can amount to harassment.
Can conduct outside of work amount to workplace harassment?
Yes. Work-related social events, business trips, conferences, networking events and online communications may all fall within the scope of employment-related conduct.
What if the behaviour was intended as a joke?
Intent is not determinative. Conduct may still amount to harassment if it has the effect of violating dignity or creating an offensive environment, even if no offence was intended.
Should employers provide training?
Yes. Regular, meaningful training is one of the most important steps employers can take to prevent harassment and demonstrate compliance with their legal obligations.
Can employers be liable for actions of their employees?
Yes. Employers may be vicariously liable for acts of harassment committed during the course of employment unless they can show they took reasonable steps to prevent the conduct.
What should managers do if they witness inappropriate behaviour?
Managers should not ignore concerns. They should take prompt action, record what has happened, seek advice where necessary, and ensure appropriate procedures are followed.
How often should policies be reviewed?
Policies should be reviewed regularly, particularly following legal developments, workplace incidents, organisational changes, or feedback from employees.
How We Can Help
Employers should regularly review their policies, procedures and training programmes to ensure they remain compliant with current legislation and best practice.
If you require advice on workplace investigations, disciplinary procedures, policy reviews, training, or compliance with the duty to prevent sexual harassment, Wilson Browne’s Employment Law team can help. Contact us today!