Sexual harassment: managing the workplace risk

Despite the growing recognition and awareness of sexual harassment in the workplace, sadly it continues to be a reality faced by many employees. Preventing sexual harassment is a priority for employers, given the business and legal consequences when sexual harassment does occur in the workplace, and of course the desire to ensure all employees are safe at work.  

From a business perspective, failure to prevent and properly deal with incidents of sexual harassment can be hugely detrimental to reputation, business value and employee morale. From a legal perspective, employees are protected from sexual harassment at work by s 26 of the Equality Act 2010. Employers are often vicariously liable for any sexual harassment committed in the course of employment. That can include acts during the working day at the workplace, but also during the commute, work social events and even the homeworking environment.

All reasonable steps?

Where sexual harassment does occur, an employer who can prove they took all reasonable steps to prevent harassment from taking place may avoid legal liability (Equality Act, s 109(4)). This defence is rarely successful due to the high bar set by the employment tribunal. 

The tribunal will first consider what steps an employer took and, secondly, whether there were other reasonable steps that it could have taken (Canniffe v East Riding of Yorkshire Council [2000] UKEAT 1035_98_1704; [2000] IRLR 555), taking into account (i) the likelihood of steps being effective in preventing discrimination; (ii) cost; and (iii) practicality. The reasonable steps defence will fail if the tribunal finds that the employer could reasonably have taken any additional step to prevent the harassment. The reasonable steps defence will fail if the tribunal finds that the employer could reasonably have taken any additional step to prevent the harassment (Allay (UK) Ltd v Gehlen UKEAT/0031/20; [2021] ICR 645). This can even catch steps that might not have been successful in preventing harassment: the real issue is whether the employer could reasonably have done anything more.

Policy – plus

So what can employers do to minimise the risk of harassment occurring in the first place? 

There are two basic steps that employers should take (and many already do):

• First, have a policy that explains what harassment is and that it will not be tolerated: one that sets out a framework for addressing complaints and taking disciplinary action up to and including summary dismissal for perpetrators. The more comprehensive a policy is, the better. Remember, however, a policy that is poorly communicated or not adhered to in practice will not be enough.
• Secondly, training is important. Training will help ensure the policy is known and understood in the context of the specific organisation. The quality of training is important too: brief and superficial training is unlikely to have a substantial effect in preventing harassment, nor will it have any longlasting consequences. Regular training is important to avoid it becoming “stale”, as was the case in Allay v Gehlen.

Workplace environment

While polices and training are likely necessary requirements for creating a safe working environment, they are by no means sufficient to prevent sexual harassment from occurring. We know from experience that many organisations have such policies and training in place, yet sexual harassment still occurs. For businesses that wish to be at the forefront of tackling this problem, some broader actions can significantly help to move the dial on protecting staff from harassment. These include:

• Improving the quality of policies and training. To ensure policies and training are meaningful, they must be complied with in practice, including by communication to new joiners and being publicised throughout employment. Training materials should be tailored to the organisation and attendees, and focused on sexual harassment rather than combining all equality issues together. Training should also be provided regularly, rather than as a one-off or tick-box exercise. Nuanced practical examples and training on unconscious bias and micro-aggressions can help everyone to see how embedded low-level sexual harassment often is in our culture, and really encourage people to reflect on the required standard of behaviour.
  For those involved in taking disciplinary decisions, training on how individuals may react when they are subject to harassment is key: for example, a person not promptly removing themselves from the situation does not mean they did not feel harassed.
• Recognising environmental factors that create a higher risk of harassment occurring. Take time to consider where risks arise in your organisation. Many risk factors are common: high-stress environments, late nights/long hours, working between just two colleagues (especially where there is a power imbalance), or any events involving alcohol or close contact. The last is particularly important, as in practice acts of sexual harassment often happen at workplace social events and after hours. Once identified, consider what extra measures could be put in place to reduce the risk of harassment. For example, if an employer recognises that incidents involving sexual harassment occur within their workplace from customers or other employees, the employer should take specific and targeted steps to address the issue, an issue raised in the race harassment case of Tesfagiorgis v Aspinalls Club Ltd [2021] UKET 2202256/2020.
• Diversity is key. A lack of diversity, including at leadership levels, can increase the risk of harassment. Certain groups are at greater risk, in particular women and where there is intersection of protected characteristics. By embedding diversity into all layers of an organisation, practices which reduce harassment are more likely to flourish.
• Instilling personal responsibility for making policies a success and changing the culture. Everyone has a role to play in maintaining a safe culture. This comes in two key forms. First, ensure everyone understands that it is not acceptable to be a bystander. As noted in connection with training above, the aim should be to positively empower people to be architects of change. Secondly, leaders must be consistently proactive in visibly championing the policies and standards expected.
• Being mindful of language/semantics. Employers should avoid emotive or partisan language such as “victim”, “complainer” or “accused” in their policies, training and processes, as it can influence views and it risks creating a feeling that an outcome has been predetermined. Individuals may not like to associate with a word such as “victim”, for example. It is best to use non-emotive language, initials, anonymised references (“Employee A”), or more neutral descriptions such as “person who has raised a concern”, where appropriate.
• Effective and safe reporting mechanisms. All employees should be familiar with how to report concerns and, for those involved in responding, how to do so quickly, effectively and sensitively. Until employees feel safe and supported in reporting harassment, an organisation may have an inaccurate view of whether a problem exists, its extent and how to address it. Appropriate levels of confidentiality and psychological support should be built into any safe reporting system and sexual harassment policy. Employers must also recognise the need to ensure that any process implemented does not unnecessarily cause any more damage or reopen trauma: incidents of sexual harassment and subsequently the handling of any complaint process can be traumatic and employers must handle such processes carefully and provide sufficient holistic support. 
• Wellbeing support for all involved. Employers have health and safety obligations to all employees involved in sexual harassment, and that includes obligations to those who are witnesses and to the subject of the complaint.
• Be prepared for concurrent police involvement. In more serious cases, a workplace sexual harassment case can amount to a criminal allegation of sexual assault or even rape. It can sometimes help for employers to engage with police proactively on a no-names basis at an early stage to gain an understanding of how processes may link together. Each case is different but often an employer will choose not to await the outcome of a criminal trial before progressing matters internally. Where a person is under criminal investigation, they may be legally advised not to say anything to their employer as it could jeopardise their defence. Employers should not draw any adverse inference from an employee’s decision to remain silent about events under investigation in these circumstances, but they should make it clear that they may need to make important decisions based on the information they have, so that individuals can reflect on what details they feel able to share. It is common to receive police requests for information sharing.
• Publicly committing to improvement. Committing publicly to reducing harassment is key. In order to make this meaningful, organisations may wish to include targets and progress updates as a standing board agenda item, and ensure that any actions agreed are followed through. Managers and those in senior positions should visibly condemn sexual harassment and commit to and clearly communicate a zero-tolerance approach to sexual harassment.

Research based

These missing ingredients can really make a difference. They have been researched extensively, as described in the recent report Enough is Enough by Engender – Scotland’s feminist policy and advocacy organisation – on ways to tackle workplace sexual harassment in Scotland.

The ideal outcome is to create a workplace free from harassment. It may be that by making such comprehensive cultural changes an employer is better placed to run a successful statutory defence if any incidents do occur.