A recent survey by the Trade Union Congress (TUC) shows that sexual harassment in the workplace is widespread despite legislation outlawing it. Adam Grant and Jemma Pugh offer tips on how employers can reduce the risk of liability.

According to the TUC report, “Still just a bit of banter? Sexual harassment in the workplace in 2016”, more than half (52%) of women and nearly two-thirds (63%) of young women have experienced sexual harassment in the workplace. Out of these, four out of five (79%) said that they did not report it to their employer.

With such high statistics, does your business have adequate safeguards in place to protect employees from sexual harassment in the workplace? If it does not, you could be exposing yourself to potential claims.

What is sexual harassment?

The Equality Act 2010 (the Act) defines sexual harassment as unwanted conduct of a sexual nature, which has the purpose or effect of violating someone’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Sexual advances, sexual jokes, sending emails of a sexual nature or downloading pornographic photographs in the workplace could all constitute sexual harassment.

Some perpetrators will claim that their comment or action was meant in jest or as a compliment. This is not a defence, nor is it good enough to state that the victim usually joined in with “banter” and so the perpetrator thought it was acceptable.

Harassment does not have to be directed at the person complaining about it. For example, sexual comments directed at one employee may create a degrading, intimidating or hostile working environment for another employee.

The TUC’s findings on sexual harassment in the workplace

The study surveyed more than 1,500 women and found that 35% of women have heard comments of a sexual nature being made about other women in the workplace, and 32% of women have been subject to unwelcome jokes of a sexual nature.

Nearly a quarter of the women surveyed said they had experienced unwanted touching and one-fifth had experienced unwanted sexual advances.

In nine out of 10 cases, the perpetrator of the harassment was a male colleague, with nearly one in five being the victim’s direct manager or someone else with direct authority over them.

Four out of five women said that they did not report the sexual harassment to their employer. Out of the minority who did, very few saw a positive outcome: nearly three-quarters reported that there was no change and 16% reported that they received worse treatment at work as a result.

Practical steps for employers to avoid liability

Not only do these incidents create an unpleasant working environment, they also put an employer at risk. As with other breaches of the Equality Act, employers are vicariously liable for the actions of their employees done “in the course of employment”.

The definition of “in the course of employment” is wide and can include incidents which take place outside of work; for example, at work-related events, or even where the employees involved are wearing uniform, but not at work. Importantly, employers can still be vicariously liable even where the relevant act was done without their knowledge or approval.

An employer may have a defence against claims of vicarious liability where they can demonstrate that it took “all reasonable steps” to prevent the harassment before it occurred. Some practical steps that can be taken include:

• Having a robust policy: ensure that you have a comprehensive anti-bullying and harassment policy in place and that any existing harassment policies are fit for purpose. Tailor the policy to fit your business: consider the organisation’s culture and consider outlining relevant examples of what might constitute sexual harassment.
• Tightening other policies: consider whether or not this policy needs to be linked to other policies you already have to ensure that all types of harassment are covered, for example to your social media policy.
• Ensuring communication: make sure that policies are communicated to employees, including details of the procedure which employees can follow in the event of any complaint and alternative reporting options if the employee’s line manager is the subject of the complaint. The policy cannot be relied upon if it is not publicised.
• Implementing training: train managers and senior employees to recognise harassment issues. The TUC research focused on women and found that men were usually the perpetrators. However, sexual harassment in any context should not be ignored, and so the same principles need to be applied where the victim is a man and where the perpetrator is the same sex as the victim.
• Taking action: if an incident is reported, ensure that allegations are taken seriously and investigated thoroughly, with appropriate action being taken against the perpetrator. The TUC study highlights that in many cases, sexual harassment goes unchecked due to employees’ reluctance to report it and, if they do, then employers often fail to take action.

Employers must foster a working culture where employees are encouraged to report incidents of sexual harassment and ensure that the allegations are treated seriously and with care. Not only will this create a more positive working environment, but it will help reduce the risk of claims and ensure the corporate reputation is protected.

Article by Adam Grant and Jemma Pugh of Wedlake Bell