Many people suspect that the real figures may be even higher with a lot of people feeling unable to speak out about their experiences. This may be for a variety of reasons, including fear of judgment, retribution or not being believed.

It is also important to remember that it is not only those that identify as women that can be victims of sexual harassment.

What Laws are in Place to Protect Us?

The Equality Act 2010 provides protection against harassment in the workplace. This protects people in relation to seven listed protected characteristics: age, disability, gender reassignment, race, religion/belief, sex and sexual orientation.

It defines harassment as:

• Any “unwanted conduct relevant to a protected characteristic” which has the “purpose or effect of violating dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment”.
• Any “unwanted conduct of a sexual nature” that has this same effect; or
• Any less favourable treatment as a result of someone rejecting or submitting to any “unwanted conduct of a sexual nature or that is related to gender reassignment or sex” which has this effect.

Claims for harassment at work can be brought in the Employment Tribunal, provided the claim is submitted within 3 months of the last act of discrimination.

However, the Employment Tribunals have a backlog of cases meaning that bringing a claim is a long process. Hearings often do not take place for approximately 18 months after the claim is submitted, with some claims going on for years. This is understandably a daunting process for many Claimants.

What is Being Done?

The former government committed to introducing a mandatory duty on employers to prevent sexual harassment in the workplace.

The Worker Protection (Amendment of Equality Act 2010) 2023 is due to come into force on 26 October 2024. This will:

• Introduce a duty on employers to take “reasonable steps” to prevent sexual harassment of their employees (a proactive duty);
• Give the Equality and Human Rights Commission (“EHRC”) the power to take enforcement action against an employer for a breach of this duty including the power to investigate, issue an unlawful act notice, require an employer to prepare an action plan or enter into a binding agreement to remedy the breach and ask a court to issue an injunction to prevent the employer from committing the unlawful act; and
• Give Employment Tribunals the power to uplift any compensation in a sexual harassment case by up to 25% where an employer is found to have breached this new duty. This means that this new protection cannot be brought as a free-standing claim, but it could increase compensation in a pre-existing claim for sexual harassment.

As originally drafted the bill went much further and had intended to reintroduce employer’s liability for third party harassment.

Many will be disappointed by this watering down given that the Trade Union Congress poll found that 39% of recent incidents of sexual harassment, bullying or verbal abuse against women were cases where the perpetrator was a third party (for example, a client, customer or patient).

It should also be noted that the new duty only applies to sexual harassment (i.e. conduct specifically of a sexual nature). It does not extend to harassment relating to any of the specific protected characteristics, including in relation to sex.

The EHRC has pre-existing published guidance, on sexual harassment and harassment at work, to help employers prevent and respond to harassment in the workplace. It has now updated this guidance to take account of the new positive legal obligation to take reasonable steps to prevent workers from sexual harassment. It recently commissioned a consultation on this, to ensure that the updated guidance is clear and useful. This consultation process is due to end on 6 August 2024.

The EHRC’s draft updated guidance really emphasises that employers should be anticipating scenarios where workers might be subject to sexual harassment, and taking steps to ensure that does not happen, rather than waiting for an incident to occur. This includes considering steps that may be reasonable to prevent third party harassment.

Labour Government’s Plans to extend Worker’s Rights

It is worth keeping in mind that the new Labour government has also indicated that they intend to make further reforms in this area. They have already indicated that one such reform may include extending this preventative duty to make it a duty for employers to take “all reasonable steps” rather than just “reasonable steps” to prevent harassment in the workplace. 

Deputy Prime Minister Angela Rayner also recently announced that Labour want to ensure that this duty is also extended to contracted interns and volunteers as well as employees.

Only time will tell as to whether Labour will make these promised reforms and whether they will have any real impact on the number of cases of sexual harassment in the workplace.

BRONYA GREATREX
ASSOCIATE, LONDON

020 7484 7549

b.greatrex@hempsons.co.uk

Bronya is an Associate Solicitor at Hempsons LLP, specialising in Employment Law within the health, social care and charity sectors.

Bronya has a keen interest in litigious work, particularly in the employment and employment appeals tribunal. Her experience includes defending claims of unfair dismissal, discrimination, whistleblowing, breach of contract/wrongful dismissal, pay claims, flexible working claims and equal pay claims.

She also advises on the full range of employment matters such as TUPE, managing complex employee relations matters, restructures, agreeing exits, employment status, partnership working and in relation to employment contracts and policies.