How Employers can Take Reasonable Steps to Prevent Sexual Harassment in the Workplace

Harassment in the workplace can take many forms and can often relate to protected characteristics such as race, religion, belief, sex or sexual orientation. In the UK, the Equality Act 2010 (‘The Equality Act’) sets out strong, clear protections against sexual harassment in the workplace. In particular, Section 40 prohibits employers from harassing their employees or job applicants.

However, despite the existence of these protections, the Government has conceded that sexual harassment persists in society.

Such has been the overwhelming public mood of frustration and dismay, largely driven and influenced by the #MeToo and #TimesUp movements, there has been growing public support for changes to laws to tackle sexual harassment.

In its 2018 report on sexual harassment in the workplace, the Women and Equalities Select Committee (‘WESC’) documented concerns with the coverage of sexual harassment protections in existing UK law.  

As a result, the Government has committed to consulting on the concerns raised by the WESC with a view to ensuring that UK legislation is operating effectively. The consultation focuses on 5 key areas –

• the evidence for the introduction of a mandatory duty on employers to protect workers from harassment and victimisation in the workplace;
• how best to strengthen and clarify the laws in relation to third party harassment;
• whether interns are adequately protected by the Equality Act;
• the evidence for extending the protections of the Equality Act to volunteers;
• the evidence for extending Employment Tribunal time limits in the Equality Act from three months.

The Governments consultation aims to ensure that the UK has a strong legal framework in place, which both establishes clear standards and expectations for individuals and employers alike and is responsive to challenges in a changing world.

The anticipated introduction of stronger laws and increased scrutiny on how businesses deal with sexual harassment complaints will inevitably test the effectiveness of an organisation’s sexual harassment policies and increasingly expose businesses to regulatory and reputational risk.

Employers Liability

Under section 109 of the Equality Act 2010, employers may be vicariously liable for acts of discrimination, harassment and victimisation carried out by their employees in the course of employment. The combined effect of these provisions means that an employer may be legally liable for sexual harassment carried out by their staff. This employer liability applies regardless of whether they have approved, or are even aware of, their employees’ actions.

However, section 109(4) specifies that employers have a legal defence if they can show that they took ‘all reasonable steps’ to prevent their employee from acting unlawfully. The Equality and Human Rights Commission (EHRC) Code of Practice states that reasonable steps might include:  

• implementing an equality policy
• ensuring workers are aware of the policy
• providing equal opportunities training
• reviewing the equality policy as appropriate and
• dealing effectively with employee complaints.

Businesses who have a robust and effective whistleblowing policy and procedure in place will naturally have a stronger defence against being made vicariously liable for acts of discrimination, harassment and victimisation carried out by their employees in the course of employment.

SeeHearSpeakUp is a global whistleblowing service provider. If you would like more information on how we can help your organisation implement an effective whistleblowing solution to tackle harassment in the workplace, please contact our sales team on +44 (0) 1224 625111 or click here to receive a quote for these services.