Sexual Harassment in the Workplace: Why Enough is Enough

Despite living in the wake of the #MeToo movement and the ensuing push for greater recognition of sexual harassment in the workplace, the problem is still all-too real for many people in the world of work. Almost a quarter of employees feel that challenging issues like bullying and harassment are swept under the carpet in their organisation [1]. Is your business taking the steps it needs to prevent and deal with instances of sexual harassment?

Since the Equality Act of 2010, the UK has taken several steps to limit discrimination and afford protection to those undergoing harassment, which the act defines as:

“Unwanted conduct related to a relevant protected characteristic which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual[2].”

The Extent of the Issue

Yet, the problem remains one which a substantial minority of people in work go through. Indeed, according to research from the CIPD in 2020, 4% of employees said that they had been sexually harassed at work in the previous three years, with younger employees (18-34) twice as likely to experience harassment compared to their older peers at 8%¹.

Meanwhile, women are considerably more likely than men to report that they have undergone both bullying and sexual harassment while at work: 17% of women compared to 13% of men for the former, while 7% versus 2% to the latter.

The CIPD’s findings are quite stark, yet their study may have even downplayed the issue. A government survey that same year found that the situation was far worse[3]. Indeed, among its key findings were the following:

• 72% of the UK population had experienced some form of sexual harassment in their lifetime
• 43% had experienced at least one case of sexually harassing behaviour in the last 12 months
• 18% of people experience at least one type of sexual harassment on a daily basis
• 21% experienced it on a weekly basis
• 29% of those in employment experienced some form of sexual harassment in their workplace or work-related environment in the previous 12 months
• Sexual jokes, staring or looks and sexual comments were the most common incidences
• 63% of those who experienced sexual harassment in the workplace noted that the perpetrator was a man and around 22% reported that it was a woman
• 75% of those with protected characteristics felt that they were a factor in their harassment
• Only 15% of those harassed reported it formally, meaning that employers are likely to underestimate the level of harassment in their place of work
• Two-fifths (41%) of those who reported harassment felt that there were no consequences for the perpetrator
• 17% chose to look for a new job after undergoing harassment

More recent sources corroborate this situation. The Trade Union Congress released a poll back on the 12^th of May that surveyed up to 1,000 women, finding that 3 in 5 have experienced harassment at work, rising to nearly 2 in 3 between the ages of 25 and 34[4]. In addition, one in four (27%) wanted to leave their job as a result but felt that they couldn’t, while almost one in five (18%) actually did leave their job as a result.

These figures represent a worrisome situation for employers. Staff turnover brings with it inherent costs that serve to not only damage a business financially, but also reputationally. Furthermore, the accusation of sexual misconduct within the workplace can also bring with it severe ramifications, no matter the size of the business.

So, to avoid that fate, it is pertinent for employers to understand the gravity of the topic, the strict definitions and what they can do to foster a company culture free from harassment.

How is sexual harassment in the workplace defined?

Put simply, sexual harassment is unwanted behaviour of a sexual nature. As previously mentioned, the Equality Act 2010 can consider an instance sexual harassment if said unwanted behaviour:

• Violates someone’s dignity, intentional or not
• Creates an intimidating hostile, degrading, humiliating or offensive environment for the victim, intentional or not

Examples include flirting, gesturing or making sexual remarks about someone’s body, clothing or appearance; asking questions about someone’s sex life; telling sexually offensive jokes or sexual comments about someone’s sexual or gender identity; displaying or sharing pornographic or otherwise sexual content; touching without consent; sexual assault and finally, rape.

Whilst it’s obvious that the severity in each of the above examples varies considerably, the key factor that makes an action constitute sexual harassment is the unwanted, sexualised nature of it, and that it can be considered hostile, degrading, humiliating, offensive or otherwise intimidating.

Note also that sexual harassment need not necessarily be directed at any one individual. It’s possible that a culture of sexual harassment, such as the continual sharing of sexual images, can still constitute sexual harassment even if not aimed at any particular person.

Upcoming Changes

The Worker Protection Bill, an amendment of the Equality Act of 2010, is now making its way through the House of Lords. Among its various changes, it suggests a mandatory duty on employers, requiring them to take all reasonable steps to prevent sexual harassment.

Employment tribunals will be able to award a compensation if they find a breach, making the stakes ever-higher for employers in sexual harassment cases.

Are employers liable?

Although the individual who sexually harasses is ultimately responsible for their own actions, employers can potentially be held partially responsible under the notion of ‘vicarious liability’. For instance, if person A sexually harasses person B whilst they both work for the same company, and the employer has not taken all reasonable steps necessary to prevent said harassment from occurring, then they could be held partially liable. Similarly, if the employer has not taken adequate steps to ensure that their workplace does not have a culture of sexual harassment, then they may also be held responsible to a degree.

However, if an employer has taken all the steps to ensure that their workplace remains free from sexual harassment, then it may be down to a judge to decide if a case is made against them by an employment tribunal[5].

Vicarious liability can be a difficult and complicated area, and it is always recommended that you seek professional guidance if you have questions. Moreover, the definition may change considerably if the new Worker Protection Bill passes.

What can employers do to prevent sexual harassment in the workplace?

Speaking to Glamour Magazine, advisor for ACAS, Gary Wedderburn, had this to say: “Employers should take steps such as explain what sexual harassment is, what types of behaviours are unacceptable, encourage and support staff to report any incidents and be clear on how a reported incident will be investigated. All staff should be trained to recognise sexual harassment[6]”.

He also recommends the following:

• A zero-tolerance policy for sexual harassment
• Anonymous reporting of sexual harassment
• Anonymous surveys to see if staff have been subjected to or witnessed sexual harassment
• Incorporating the reporting of sexual harassment cases in a manager’s performance objectives
• Ensuring that management staff have the skills to deal with cases of harassment or report as necessary

Additional ACAS Guidance

Put policies and procedures in place

When complaints arise, employers are obligated to follow a full and fair procedure in line with the Acas Code of Practice. This can include a grievance procedure, or a specific sexual harassment policy.

If you choose to do the latter, then it must be in line with trade unions and other employee representatives if there is no union in place.

Implement an effective reporting system

As Garry Wedderburn mentions, having multiple avenues available to staff is a huge advantage. This can take the form of reporting to a line manager, senior manager, a specialist trained to deal with the specific problem (a ‘workplace champion’), a trade union representative or an anonymised system of report.

Use formal and informal routes

On the disciplinary side, there are informal options that one can take before more formal proceedings. An example of could be extracting an apology or form of reassurance that any such incidents of sexual misconduct will not happen again.

If these informal options remain unheeded, a formal procedure must then follow. It must allow the person who made the complaint and the person that they are complaining about to be accompanied by a union representative or colleague, and advice must be readily available for both parties. Note also that a right of appeal against a decision after the complaint has been investigated and evidence heard also a matter of due course.

Afterward, a disciplinary process or amendments to current policy can then be put in place as needed. Paid time off for the aggrieved party may be required to help them deal with any physical or mental stress that they have endured.

Make sure other policies help

Check that all related policies fall in line with your sexual harassment policy (e.g. disciplinary policy, social media policy, dress code policy and data protection policy (GDPR)).

Train staff

Often the best first step is to make sure that all staff receive adequate training about sexual harassment in the workplace before it occurs. Ensure that everyone is on an equal footing and is aware of the consequences from the offset in order to avoid any potential problems.

Similarly, having someone trained in HR, a manager or other member of staff who is well versed in the procedures can be a huge advantage in stamping out issues before they escalate.

Assess the risk

There are multiple factors which can exacerbate or put your workers at higher risk of sexual harassment aside from the task that they are given. These include lone working, the presence of alcohol or distinct power imbalances between staff. Mitigating these, even partially, can belay any future difficulties. It’s also crucial to manage the risk of sexual harassment at any given time, as often cases can go unreported for weeks, months, even years.

Create a culture of zero tolerance

Inherent in the above policy prescriptions is to make it very clear from the offset that sexual harassment in your place of work is not only illegal, but also fundamentally counter to the ethos of your business, and can lead to serious professional consequences.

Improve equality, diversity and inclusion

Businesses that promote equality, diversity and inclusion are potentially less likely to encounter instances of sexual harassment according to a study by Shiu-Yik Au, Andréanne Tremblay and Leyuan You[7].

Conclusion

As our previous examples have shown, allowing workplace sexual harassment to fester and metastasize can have huge long-term impacts on a business, whether financially or reputationally – both of which can be fatal to a company’s image and its lasting success.

Therefore, taking steps to prevent or to counter it when found are the best ways to ensure your organisation’s survival.

For help crafting a tough and healthy sexual harassment policy, and therefore a robust workplace free from discrimination, why not get in touch with our dedicated team of expert professional advisors on [email protected] or alternatively call 01455 444 222 today.

Footnotes

[1] Suff, R. (CIPD). (January 2020). Managing Conflict in the Modern Workplace. https://www.cipd.org/globalassets/media/knowledge/knowledge-hub/reports/managing-conflict-in-the-workplace-2_tcm18-70655.pdf

[2] UK Public General Acts. (2010). Equality Act 2010, Section 26. https://www.legislation.gov.uk/ukpga/2010/15/section/26

[3] Adams, L.; Hilger, L.; Moselen, E.; Basi, T.; Gooding, O.; Hull, J. (Government Equalities Office). (2020). 2020 Sexual Harassment Survey. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1002873/2021-07-12_Sexual_Harassment_Report_FINAL.pdf

[4] Trade Union Congress (TUC). (12^th May 2023). New TUC poll: 2 in 3 Young Women Have Experienced Sexual Harassment, Bullying or Verbal Abuse at Work. https://www.tuc.org.uk/news/new-tuc-poll-2-3-young-women-have-experienced-sexual-harassment-bullying-or-verbal-abuse-work

[5] The Advisory, Conciliation, and Arbitration Service (ACAS). (10^th May 2023). Discrimination and the Law: Vicarious Liability. https://www.acas.org.uk/discrimination-and-the-law/vicarious-liability

[6] Mohammed, S. & Ross, C. (15^th May 2023). Sexual Harassment is Still Rife in the Workplace According to Alarming New Statistics – and We Need to Talk About It. https://www.glamourmagazine.co.uk/article/new-statistics-about-sexual-harassment-in-the-workplace

[7] Au, S-Y.; Tremblay, A.; You, L. (30^th November 2022). Does Board Gender Diversity Reduce Workplace Sexual Harassment? https://onlinelibrary.wiley.com/doi/full/10.1111/corg.12496