Tesco Chairman, John Allan, has recently been accused of inappropriate behaviour towards four female employees, which he wholly denies. Although it seems obvious now, behaviour of the type alleged in this situation constitutes sexual harassment, but not long ago, a jovial remark or wolf-whistle was deemed ‘typical behaviour’ and accepted in the workplace – not anymore.

Times have changed and continue to do so, so it is important that businesses ensure their sexual harassment policies continue to adapt as well. It is important that employers stay on top of this as an issue and take a robust approach where complaints are raised to make sure that these are handled sensitively and properly with all involved.

What is the law on sexual harassment?

The Equality Act 2010 (EqA) defines sexual harassment as unwanted conduct of a sexual nature which has either violated someone’s dignity, or created an intimidating, hostile, degrading, humiliating or offensive environment for them. It is irrelevant whether the effect is intended or not. A single incident can be enough to constitute harassment. Most cases involve only a one off occurrence that has crossed the line.

Whilst it should be common knowledge that unwanted touching of another person qualifies as sexual harassment, there are some other qualifying behaviours that are less clearly defined. The Equality and Human Rights Commission guidance advises that unwanted conduct of a sexual nature includes a wide range of behaviour, including:

• Sexual comments or jokes.
• Displaying sexually graphic pictures, posters or photos.
• Suggestive looks, staring or leering.
• Propositions and sexual advances.
• Making promises in return for sexual favours.
• Sexual gestures.
• Intrusive questions about a person’s private or sex life, or a person discussing their own sex life.
• Sexual posts or contact on social media.
• Spreading sexual rumours about a person.
• Sending sexually explicit emails or text messages.
• Unwelcome touching, hugging, massaging or kissing.

Who is protected under the Equality Act 2010?

All employees are protected regardless of length of service. In addition, for the purposes of the EqA, protection also extends to job applicants, workers and also those who are self-employed. Employers need to make sure they take steps to protect all people that they are working with.

What are employers’ responsibilities?

Employers can be vicariously liable for acts of sexual harassment committed by their employees if the harassment occurred in the course of employment, and the employer did not take all reasonable steps to prevent the harassment from occurring. It is worth noting that “the course of employment” is interpreted widely and can include social events, workplace related activities and business trips.

Employers may, however, be able to defend against a claim of harassment if they can show that they took all reasonable steps to prevent the harassment from occurring. Whilst “reasonable steps” are not defined, examples these should include:

• Clear anti-harassment policies (and ensure this is read by all employees)
• Providing regular and thorough training on harassment and how to report it within the workplace
• Take all allegations of harassment seriously and investigate them properly
• Taking swift and appropriate action to address any allegations of harassment.

It is also important to remember that the employee found to have committed the act of sexual harassment could also be liable personally. When advising people in this situation, they can be surprised as to the potential exposure.

With the recent increases in Vento bands, taking the top awards up to £56,200 and the employee to also pursue potential awards for lost earnings, aggravated damages and personal injury, the potential exposures for employers (and the perpetrating employee) can be substantial. Often we have to advise the individual perpetrator of the offending incident and they are always shocked as to the potential that their own money or assets could be on the line!

Future Reform

The law surrounding sexual harassment is constantly evolving. As well as case law providing further and more nuanced guidance as to what constitutes sexual harassment, the Government is supporting the Worker Protection (Amendment of Equality Act 2010) Bill 2022-23 which will extend employers’ liability in relation to sexual harassment of their employees. If passed as currently drafted, the Bill will, among other things, introduce a mandatory duty on employers to take all reasonable steps to prevent sexual harassment of their employees and will re-introduce employers’ liability for third-party harassment. For now, it is a waiting game as to whether the Bill will be implemented as drafted and the scope of the employer’s liability under new legislation.

Conclusions

Ultimately, prevention is better than the cure and employers should be taking proactive steps to prevent and address sexual harassment, by ensuring correct processes and regular training are in place and adhered to, as well as ensuring their employees feel safe and supported.

If you would like to review your current workplace polices or training on sexual harassment or would like further advice as to your responsibilities, please get in touch with our Employment team who will be happy to assist with any questions.