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A recent Trade Union Council (TUC) report, “Still just a bit of banter?” prepared alongside the Everyday Sexism Project following a survey of around 1,500 women, has identified a continuing serious problem of sexual harassment in UK workplaces.  The researchers found that 52% of women responding report that they have been subject to conduct which could amount to sexual harassment at work.

This figure rises to 63% when the focus is solely on women between the ages of 18-24.  Perhaps even more worrying is the fact that 79% of the women, who indicated they experienced harassment report that they did not tell their employer.

Other striking findings include the fact that nearly a quarter of women, who responded to the survey reported that they experienced unwanted touching and nearly a third reported experiencing unwelcome jokes of a sexual nature.  

The findings certainly indicate that sexual harassment remains a big issue and should give cause for concern.  Against this, it should be noted that the survey size was relatively small and making wholesale judgments on the true extent of the problem throughout UK workplaces by extrapolating the figures is problematic.

What is sexual harassment? A reminder.

The definition of sexual harassment, contained within The Equality Act 2010, is unwanted conduct of a sexual nature which has the purpose or effect of violating the other person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. This is distinct from sex-based harassment which relates to the gender of the person being harassed but is not necessarily sexual in nature.

The Act also prohibits less favourable treatment because someone has rejected (or submitted) to the conduct of a sexual nature.

What constitutes conduct of a ‘sexual nature’ is not defined but has been interpreted to cover a wide variety of acts, including; physical contact, making comments or jokes of a sexual nature, or sending emails with sexual content.

If an employee is sexually harassed by another employee, the employer will be liable for those acts unless they can demonstrate they took all reasonable steps to prevent the harassment. In addition, the perpetrator employee can also be held liable personally.

It is also important to remember that employers can be liable for acts that occur outside of the workplace, if they take place ‘in the course of’ employment. Accordingly work related social events will be covered and another finding of the report was that 14% of women reported having been sexually harassed at such occasions.

Recommendations

In terms of recommendations, the TUC report notes that the number of sex discrimination claims (which incorporates sexual harassment claims) has gone down by 76%, since the introduction of Tribunal fees over three years ago. It notes, perhaps logically, that the impetus for employers to tackle discrimination is diminished because it is now less likely those affected will pursue a Tribunal claim.

The report also recommends the re-introduction (within The Equality Act) of employer liability for third party harassment, (such as that of a client or a member of the public as opposed to a fellow employee) which was contained within section 40 of the Equality Act and which was controversially repealed almost three years ago. This made employers liable if they had knowledge of similar conduct on two previous occasions and had not taken practicable measures to prevent it. The report concluded that, where harassment was reported to have taken place, it was carried out by a third party in 7% of cases.

The report also makes a link between the increased incidences of harassment toward younger woman and the greater likelihood that women of that age will be on temporary, agency or zero-hours contracts. The report recommends wholesale reform to legislation so that such workers have the same employment status and basic rights as others, including protection from unfair dismissal. The report’s authors consider this would result in such staff being less vulnerable to such conduct and more likely to report it.

While all of these highlighted recommendations may be worth considering it is unclear whether they are likely to garner much in the way of political support. The Conservative government is perhaps unlikely to have much appetite to effect such change at present, although our previous blog noted that workers’ rights may not be as far down the ‘post Brexit’ agenda as some may have thought. In a somewhat bizarre statement in response to the report a Government spokesman was quoted in “The Guardian” on 10 August as asserting that “section 40 has not been scrapped and any employee who experiences harassment is protected by the Equality Act-regardless of who the perpetrator is.” While there arguably remain potential remedies for employees who are subjected to third party harassment it is unequivocally the case that section 40 was repealed by section 65 of the Cameron Government’s Enterprise and Regulatory Reform Act 2013.

What Should Employers do?

Many if not most employers will already have in place policies on sexual harassment, equal opportunities and/or dignity at work in place. They may also send some (or all) of their employees on relevant training courses and such measures may constitute reasonable steps to prevent harassment. However, it is not enough to simply rely on these policies passively, and assume they will afford sufficient protection if an employee does engage in sexual harassment.

Employers must generally go beyond this and seek to foster an environment in which allegations of harassment are properly investigated and dealt with. To pick up the title of the TUC report, Employers should not allow a culture to emerge where comments and acts of a sexual nature are seen as ‘banter’ and not taken seriously. Instead, they must have clear policies in place and deal effectively with any complaints which are raised. It is only by doing this that they will be considered to be taking reasonable steps to prevent harassment and be in a positon to avoid liability.

The TUC report recommends a top down “zero tolerance” approach to sexual harassment with policies that reflect that. While due process and fairness must also be afforded to anybody accused of such conduct, such an approach will leave staff in no doubt that conduct, which could constitute harassment, will not be indulged and should mean that those affected by such conduct are more likely to come forward. More importantly such measures are likely to be key to creating a modern, appealing workplace in which female employees can flourish for the benefit of the organisation.

If you would like to discuss the issues mentioned in this article, particularly whether or not relevant policies and approaches to the issue are adequate and up to date, please do not hesitate to contact your usual contact within the team.

Euan Smith, Associate and Annika Neukirch, Trainee Solicitor

 

Chambers UK 2018

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