So, what does this mean for employers? Employers are already liable for sexual harassment in the workplace under the Equality Act 2010. However, the new legislation places a new duty on employers to take a proactive approach to preventing sexual harassment.
What is sexual harassment?
Sexual harassment is unwanted conduct of a sexual nature which has the purpose or effect of:
- violating someone’s dignity
- creating an intimidating, hostile, degrading, humiliating or offensive environment for them
Unwanted conduct of a sexual nature includes a wide range of behaviours. This can include sexual comments or jokes, sexist jokes, displaying sexually graphic pictures, suggestive looks or leering, propositions and sexual advances, intrusive questions about a person’s sex life or discussing your own sex life, sexual posts or contact on social media, spreading rumours about a person’s sexuality, unwelcome touching, hugging, massaging or kissing.
As well as this criminal behaviour, such as sexual assault, stalking and indecent exposure can all be classed as sexual harassment if they take place in the course of employment.
Reasonable employers will already have policies in place to deal with sexual harassment. However, under the new legislation, employers must take reasonable steps to prevent sexual harassment in the workplace. The measures taken by the employer should not simply be a tick box exercise and employers facing a claim will have to show that they have taken reasonable steps to prevent sexual harassment.
Proactive approach
Employers should consider the following:
Workplace culture: Workplace culture can vary depending on the nature of the business. If a toxic workplace culture exists, then the employer must take steps to eradicate any behaviour which tolerates sexually harassment.
Policies and training: Robust policies which outline a zero tolerance approach to sexual harassment should be implemented. The policy should cover what counts as sexual harassment, how to make a complaint and how it will be dealt with, what amounts to a criminal matter and when the police will be involved, and when disciplinary action will be taken.
Training is also crucial for all staff, and not just for management. It should cover what counts as sexual harassment, what the obligation is for staff in terms of their own conduct and should cover how to prevent harassment. Training and policies should also cover social media communications and WhatsApp communications as well as how to report sexual harassment.
Safe reporting: Staff should be made aware of how to report sexual harassment in line with the employer’s policy. Employees should also be encouraged to speak out about harassment.
Role of management and senior staff: Management and line leaders should set the tone for conduct in the workplace. After all, no employee is going to feel comfortable reporting sexual harassment to a manager who openly makes inappropriate comments in the workplace.
Sexual harassment claims at an employment tribunal
Under the new law, the employment tribunal can now increase compensation awards for sexual harassment claims by up to 25% if it finds that sexual harassment has taken place, and that the employer failed to take reasonable steps to prevent sexual harassment.
As well as a large financial penalty, employers who fail in their obligation to take reasonable steps to prevent sexual harassment risk reputational damage.
You need to be ready for the changes to the law so you are not caught unprepared. Nothing invites HR trouble so much as not having the right procedures in place. Consulting an employment law specialist who can walk you through the process of getting policies and procedures in place will be invaluable.