Under the Equality Act 2010, harassment is unwanted conduct which is related to one of the following protected characteristics: age, disability, gender reassignment, race, religion or belief, sex and sexual orientation. Under the legal definition, this unwanted conduct “has the purpose of effect of either violating an individual’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment”.
Harassment differs from bullying, which does not have a legal definition under the Equality Act. Sexual harassment is unwanted conduct of a sexual nature. It is different to sex-based harassment which is unwanted conduct related to gender.
A survey in 2017 found that 40% of women and 18% of men experienced unwanted sexual behaviour in the workplace. Sexual harassment disproportionally impacts women in the first instance and we can’t shy away from that reality.
However, sexual harassment can absolutely also be a female harassing a male, a male harassing another male or a female harassing another female. Equally, those individuals who do not identify with the above genders can be victims or perpetrators of sexual harassment. All incidences of sexual harassment need to be treated in the exact same way and with the exact same seriousness as male on female sexual harassment.
In light of the Women and Equalities Select Committees Report that was published on sexual harassment, the Government has responded and committed to the following:
- Developing a new statutory Code of Practice to tackle sexual harassment in the workplace.
- Adding the Equality and Human Rights Commission (EHRC) to the list of prescribed persons for whistleblowing purposes
- Working with ACAS, EHRC and employers to raise awareness
- Gathering regular data on the prevalence and nature of workplace sexual harassment at least every three years
The Government has also agreed to consult on a number of other areas including better regulating the use of non-disclosure agreements and strengthening and clarifying the laws on third-party harassment.
An employer will be vicariously liable for acts of sexual harassment committed by an employee in the course of their employment. This includes social events hosted by the organisation even if they happen outside of normal office hours and outside of the organisation’s premises. It also includes any work trips including those overseas. The only statutory defence an employer will have is if they took all reasonable steps to prevent the harasser from committing that act. In light of the above proposed changes by the government, previously considered ‘reasonable steps’ such as training, policies and procedures alone won’t be enough anymore. Organisations must be seen to actively tackle inappropriate behaviour. ‘Banter’ culture is very dangerous under these proposed changes and organisations where this is prevalent and currently accepted will need to make significant changes.
Many business owners and managers assume the problem doesn’t exist within their business or department, often because no-one has complained, or it is just seen as ‘banter’. However, many employees are often reluctant to report sexual harassment out of fear of damaging working relationships or being perceived as a troublemaker. Organisations must make it very clear that they adopt a strict zero tolerance approach to sexual harassment and indeed, bullying and harassment in general. The harasser’s intentions or motives are irrelevant, and the phrase “purpose or effect” in harassment’s legal definition makes it clear that behaviour can amount to harassment in the absence of any deliberate intention to discriminate.
Furthermore, it is important that organisations have clear policies and procedures in place, so that employees have absolute guidance on how to deal with bullying and harassment in the workplace, most notably how to make a complaint and how that complaint will be dealt with. There also needs to be clear standards on what constitutes appropriate and inappropriate behaviour in the workplace. All managers should also be trained on the policies and procedures and how they can embed these within the organisation. Training on bullying and harassment needs to be delivered to all staff needs regularly and organisations should include it as part of their induction and subsequent annual mandatory training plan for staff.