The new Bill: handling sexual harassment in the workplace

According to a recent TUC poll of over 1,000 women, 58% have experienced sexual harassment, bullying or verbal abuse at work, with the perpetrator in 39% of most recent instances of harassment being a third party. Clearly, this needs to change.

Harassment is still an issue at work

As a result of the findings from the poll, the TUC is supporting the Worker Protection (Amendment of Equality Act 2010) Bill 2022-23 which is currently passing through Parliament. The Bill, which started as a Private Member’s Bill but which subsequently received government support, seeks to introduce a duty on employers to tackle sexual harassment in the workplace as well as protecting workers from harassment and abuse from third parties, such as customers or clients. 

What is sexual harassment?

Sexual harassment consists of unwanted conduct of a sexual nature that violates the victim’s dignity or creates an intimidating, hostile, degrading, humiliating or otherwise offensive environment for the victim (section 26 of the Equality Act 2010). 

Maria Caulfield, Minister for Women, emphasised in the Bill’s committee stages that “[o]ne person’s banter is another person’s harassment, and we need to be mindful of that”.

Behaviour that could constitute sexual harassment includes:

• Flirting or making sexual comments about an individual;
• Sexually inappropriate/offensive jokes; and
• Displaying sexual/ pornographic images.

With hybrid working becoming the new norm for many, it is important to note that sexual harassment in the workplace is not necessarily confined to the physical office environment. A survey conducted by charity Rights of Women (2021) revealed that:

• Nearly 1 in 2 women who have experienced sexual harassment at work experienced it online; and
• 15% of women who have experienced sexual harassment at work reported an increase in online harassment while working from home during the pandemic.

Employers should be mindful of the impact that remote or hybrid working may have on their employees and consider whether their sexual harassment policies and procedures appropriately address any issues posed by these working arrangements.

The Worker Protection (Amendment of Equality Act 2010) Bill

The Bill seeks to enhance the obligations placed upon employers and would introduce a proactive duty on employers to take reasonable steps to prevent sexual harassment in the workplace. The onus is on the employer to prove they have taken reasonable steps.

This change would be supported by a compensation uplift of up to 25% in cases where the Employment Tribunal finds that sexual harassment has occurred, and the employer has failed in their duty. 

These developments in employer liability are bolstered by the proposed re-introduction of protection against third party harassment; the Bill extends employers’ liability to include harassment of an employee in the course of their employment from third parties, such as a customer or client, where the employer has failed to take all reasonable steps to prevent that harassment. Importantly, for employers, other than in cases of sexual harassment, an employer will not be taken to take failed to take all reasonable steps where the harassment involves a conversation which the employee is not a participant of, or where there is an expression of an opinion which is not indecent or grossly offensive, and, the harassment is not intentional. 

Although the Bill had its second reading in the House of Lords on 24 March 2023, it has subsequently been reported that ministers may have withdrawn their support for the Bill. Whether the Bill actually becomes law therefore remails to be seen. That said, protecting employees at work should be a priority for employers whether or not the Bill is passed.

Handling sexual harassment in the workplace

It is essential that employees have (and are aware of their) avenues for reporting incidents of harassment and sexual harassment, whether they relate to in-person or virtual incidents.

Employers should handle all complaints seriously, with care and sensitivity. While complaints may be resolved informally, this may be inappropriate in serious situations and a formal process may be required. If an employee brings a grievance, the employer must adhere to their grievance policy and ensure they follow a thorough and fair procedure. 

Employers should consider implementing policies and procedures for specifically handling complaints and grievances of this nature. For instance, it would be good practice to introduce (or review any existing) anti-harassment policy. The policy should adopt a zero-tolerance stance on sexual harassment, emphasising that sexual harassment is unlawful. Relevant employees, such as managers and HR personnel, should receive training to ensure the policies are followed and utilised as intended. 

The Bill emphasises the importance of employers being proactive in preventing sexual harassment in the workplace; a proactive approach is just as significant as a robust reactive response. Employers should consider the ways in which they can foster an open and communicative work environment that is conducive to proactivity. This culture can encourage employees to speak up, raise their concerns and assist employers in their duty to take a proactive approach to tackle sexual harassment in the workplace.