In our January 2023 update, we discussed the proposed introduction of the Worker Protection (Amendment of Equality Act 2010) Bill (Bill) which will obligate employers to take proactive steps to eliminate sexual harassment in the workplace. Given the recent media focus on sexual harassment in the workplace (CBI, Odey Asset Management and McDonalds just to name a few), we thought it would be useful to highlight the ways in which employers should be handling sexual harassment complaints and the procedures they can put in place to minimise complaints arising.
What behaviours constitute sexual harassment in the workplace?
Sexual harassment is when someone engages in unwanted conduct of a sexual nature which either violates another person’s dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment for them. A person can be sexually harassed by someone of the same or a different sex or gender.
There have been numerous sexual harassment cases in the Employment Tribunals and some examples of behaviours that have been held as constituting sexual harassment are:
- sexual innuendos,
- inappropriate touching,
- persistent requests for dates,
- leering and suggestive gestures,
- sexually implicit jokes,
- making promises in return for sexual favours (e.g. promotion, pay rise),
- displaying sexual/pornographic images,
- invasion of personal space.
To constitute sexual harassment in the workplace, the conduct must normally be in course of employment, however it can also extend to social events outside of usual working hours and via social media. In addition, the rise in remote working over the last few years has further blurred the lines of sexual versus professional boundaries given the merging of home and work and other informal means of communication (i.e. teams, zoom group WhatsApp messaging, virtual activities). As a result, what defines a workplace is not as black and white as it used to be so employers need to have clearer policies in place to tackle these issues (see below).
The impact of workplace culture and “banter”
One issue that the tribunals are often faced with in sexual harassment cases is the notion that the remarks were considered “office banter” and that the culture of the workplace normalised that behaviour. These issues are often rooted in the failings of management to deal with toxic workplace practices.
The main point to remember here is that whilst an employee engaging in sexual banter may weaken their complaint, it can still amount to sexual harassment especially when the banter goes too far and beyond what is acceptable to a person. It should also be noted that banter may not be unwanted previously but may later become unwanted.
Practical implications for Employers
When it comes to dealing with sexual harassment, prevention is always better than cure. Employers need to remember that any tribunal judgments are made public and are often published on news outlets and therefore aside from financial repercussions, the reputational damage suffered by the company can be significant. Employers should also have a focus on creating a happy and positive environment that brings out the best in their employees so having a zero-tolerance approach to sexual harassment is critical as this will also allow employers to retain talent.
We are experienced in helping businesses to put robust and proactive safeguards in place and we can provide the following support to help you plan ahead for when the Bill comes into effect:
- Drafting and implementing clear and detailed equal opportunities policies and anti-harassment policies setting out examples of unacceptable behaviour and the consequences of breaching the policies.
- If you have remote workers, assessing whether your policies and procedures appropriately address any issues posed by their working arrangements.
- Helping you implement a zero-tolerance workplace culture to sexual harassment.
- Assisting you to promptly and thoroughly investigate all sexual harassment complaints.
- Providing engaging and informative training sessions as often as required (both remotely and in person at your premises) on the topic of sexual harassment and equal opportunities.
Please contact our Employment team for support.
(September 2023)