Bulletins | November 14, 2017

Sexual harassment – issues for employers

Sexual harassment has dominated the headlines and social media over past weeks. Now, a new survey by the BBC has confirmed that the issue is not limited to Hollywood: more than half of the women polled stated that they had experienced sexual harassment in the workplace, and one in five men. This follows on from a TUC survey last October, which showed broadly similar results.

Other disturbing statistics reported by a range of surveys are that a high proportion of victims (50-65%) do not report the harassment; and of those that did, a large proportion (40-60%) said that no action was seen to be taken.

Sexual harassment is an issue of great concern for employers. All employers have a duty to protect the health and safety of their staff, including protecting them from sexual harassment. Workers who experience harassment may suffer from stress and absenteeism, or may simply resign.

Companies will also in many cases be legally liable for the harassment of their staff, and for constructive dismissal claims where the employee has resigned. Like all discrimination claims, damages for sexual harassment are uncapped.

Sexual harassment under UK employment law covers a wide range of acts. The legal definition is “unwanted conduct of a sexual nature, that has either the purpose or effect of violating that person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.” This means that harassment can take place even when there was no negative intention on the part of the harasser, provided the victim’s reaction is not unreasonable.

Sexual harassment can include physical conduct or making sexual advances, but also extends to sexual comments, banter, innuendo, or actions such as sharing pornographic images.

Common issues that may arise for employers in the coming months include the following:

  • Historic claims: the current public focus on this issue may well mean that employees come forward with allegations of harassment that took place some time ago. In most cases, an employee will not be able to bring an Employment Tribunal claim for harassment that took place more than three months previously.   However, it would still be good practice to investigate historic claims and take action if required.
  • Avoiding vicarious liability: An employer will have a defence if it can show it took reasonable steps to prevent the harassment. All employees should make sure that they have clear policies and that they actively train staff to promote an environment that does not tolerate any form of harassment. The rules should be made clear, and those who cross the lines should be disciplined or dismissed.
  • Harassment outside the workplace: in many cases, the employer will still be liable for harassment that takes place outside work but is linked to their employment, such as a team night out or office party. Companies should make sure that allegations of this type are taken seriously, and that policies make it clear that harassment outside the office will not be tolerated.
  • Casuals and agency workers: last year’s TUC survey found that low-paid and casual staff, such as those on zero-hours contracts, are particularly vulnerable to harassment. Just like full time and directly employed staff, these workers are entitled to claim against the company if they are harassed by its employees.   Employers should ensure that these staff are made aware of the company’s policies, and that their complaints are treated seriously.
  • #Mentoo – although women make up the majority of complainants, and men the vast majority of harassers, it is worth bearing in mind that allegations by men (including those against women) should be treated equally seriously.