Preventing sexual harassment in the workplace

On behalf of Attwaters Jameson Hill posted in Employment Law on Tuesday, July 27th, 2021

According to charity Rights of Women, 44% of callers to their sexual harassment helpline reported that they had been sexually assaulted in their place of work.

In a survey of callers to the charity’s Sexual Harassment at Work advice line between August 2019 and August 2020, it was revealed that 59% of callers had suffered less favourable treatment after either submitting to or rejecting their harasser’s advances, or reporting the abuse to their employer. Of this number, 31% said their employer had failed to properly investigate their claim, 17% suffered bullying and 10% were threatened with dismissal.

Further research from the charity in late 2020 also found that 42% of women had suffered online harassment during the pandemic, while 70% believed their employers were not doing enough to protect them.

Current law

Employees are protected against sexual harassment in the workplace by the Equality Act 2010, which places a duty on employers to protect employees from harassment. According to the Act, sexual harassment occurs “when a person engages in unwanted behaviour of a sexual nature, whether verbal, non-verbal or physical, that creates an intimidating, hostile, degrading, humiliating or offensive working environment.”

The law states that employers must prove they have taken all reasonable measures to prevent harassment; otherwise, they could be found liable for the harasser’s conduct should the victim raise a formal grievance or make a claim to a tribunal. Despite this, the fact remains that a staggering 96% of women do not report incidents, with 45% saying they don’t believe it would change anything.

New government plans

On 21 July 2021, the government responded to a consultation on sexual harassment in the workplace, which originally ran from 11 July to 2 October 2019.

In its response, it stated its intention to expedite legislation to introduce a new, legally binding duty requiring employers to take all reasonable steps to prevent sexual harassment from occurring in the workplace; it “believe[s] that this will encourage employers into taking positive, proactive steps to make the workplace safer for everyone.” In addition, the changes will include specific protections from third-party harassment (i.e., from clients or customers). The government also announced that it will be publishing new guidance and a statutory code of practice for employers to help them better tackle sexual harassment in the workplace.

In addition, the government will be considering an extension to the timeframe within which employees can bring sexual harassment cases from three months to six. However, it said it wouldn’t be going ahead with all of the proposals outlined in the original consultation, for example the extension of protections to volunteers and interns, due to the adverse consequences this could have.

How does the new ‘duty’ for employers differ from current law?

As previously mentioned, the Equality Act already states that employers must show they have taken all reasonable steps to prevent workplace harassment – which on paper seems very similar to the new, extended duty announced in the government’s response. However, there is a key difference. Currently, employers must show that they took all reasonable steps to stop harassment simply in order to avoid liability if an employee goes on to bring a case against them. The new duty, however, will require them to go further, i.e. with stronger policies and procedures that prevent harassment from occurring in the first place. The government also plans to give the Equality and Human Rights Commission (EHRC) further powers to take strategic action against employers who fail in their new duty.

Top of the agenda

While the legislative framework for these changes has not yet been put into place, meaning that we don’t yet truly understand the impact the new measures will have, one thing is certain: the government’s response should be a strong incentive for employers to catapult their sexual harassment policies to the very top of their HR agenda. Our specialist Employment Lawyers are highly experienced in assisting firms to draft comprehensive policies and procedures that take into account the very latest legislative updates.

For sound legal advice, please contact Ahmet Ozcan on 0203 871 9254 or email ahmet.ozcan@attwaters.co.uk.








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