Sexual harassment in the workplace and employers’ liability – it’s not just for Christmas

As Christmas approaches, anticipation builds ahead of the first office parties since 2019. Informal work settings are often synonymous with alcohol and sometimes over-confident interactions between employees. This behaviour could lead to potential harassment.

It is more important than ever, then, to discuss and reaffirm workplace policies and practices on sexual harassment not only in advance of the festive period, but also at any time. In a new report published by The Fawcett Society, it was found that around 40% of women have been sexually harassed at some point during their career. It was also found that four in five women do not report sexual harassment when it occurs. These statistics demonstrate that, despite sexual harassment having long been unlawful, it is still very much an issue in the workplace and more steps need to be taken. This has been reflected by a recent government consultation and subsequent response.

Government intervention

A consultation on sexual harassment in the workplace was carried out from July to October 2019 with the government’s response published in July 2021. The government intends to introduce a specific responsibility requiring employers to prevent sexual harassment. Explicit protections from third-party harassment will also be introduced. Additionally, the government will consider extending the time limit for bringing a claim under the Equality Act 2010 from three months to six months. Quite how the promised new laws will achieve significant improvements in protection over existing law under the Equality Act 2010 (see below) is yet to be fleshed out. It will certainly be interesting to keep an eye on developments here.

Current employer responsibilities

Employers should already be aware that under the Equality Act 2010 they can be liable for acts of sexual harassment committed by their employees, unless they can show that all reasonable steps were taken to prevent such acts. As the festive season approaches and office parties are planned it is even more imperative to ensure all the measures are in place to prevent sexual harassment both at work and work events. It is an employer’s duty to create a safe working environment which is intolerant of all forms of harassment. There are several things that can be done to mitigate the risk of sexual harassment in the workplace:

• Ensure there is a stringent policy and procedure on sexual harassment in place, and ensure all employees are aware of these.
• Maintain a clear and detailed sexual harassment policy, separate from a general ‘harassment and bullying’ policy.
• Provide managers and supervisors with guidance and training on how to handle any harassment cases/issues that may arise.
• Handle all allegations of sexual harassment with empathy and care, promoting an open and safe environment where those affected feel comfortable to raise issues, rather than suffering in silence.

Whilst the government’s commitment to further legislation to help prevent sexual harassment at work is welcome, it is also an indication that legislation alone may not be sufficient to tackle this ongoing problem.

Workplaces must take a zero-tolerance stance towards all forms of sexual harassment. This year’s Christmas celebrations are likely to be more excitable than ever, given the lack of celebrations throughout the pandemic. It is essential, therefore, that employers take all possible steps not only to keep their employees safe and happy, but also to protect themselves from possible liability.