Understanding and Preventing Workplace Sexual Harassment: Legal Insights and Employer Strategies
A complaint of sexual harassment against one employee by another employee can be alarming for an employer as well as time-consuming to deal with, especially if you do not have an in-house HR department.
With or without HR assistance sexual harassment allegations must be taken seriously.
Unfortunately, sexual harassment is a significant problem in the workplace.
What are examples of sexual harassment?
Unwelcome comments of a sexual nature;
Inappropriate conduct, such as sending unsolicited messages, images or material of a sexually explicit nature.
What is the definition of sexual harassment?
Sexual harassment is defined as unwanted conduct of a sexual nature that violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment.
Understanding the legal framework, organizational policies, and preventive measures is crucial for creating a safe and respectful environment for everyone. In this blog, we will delve into the key aspects of sexual harassment in the UK, including its legal definitions, relevant laws, and strategies for prevention and response.
Employers are liable for acts of sexual harassment committed by their employees. This is called vicarious liability.
Statutory protection
The Equality Act 2010 contains key provisions related to sexual harassment.
Unfair Dismissal
An employee cannot be dismissed for making a complaint about sexual harassment but can resign and bring a claim for constructive dismissal if the employer does not address their concerns.
On 26 October 2024 a new duty on employers will come into force.
The duty for an employer will be to “take reasonable steps” to prevent sexual harassment of their employees.
This places the onus on employers to prevent sexual harassment arising in the workplace.
The case of Tahir v National Grid UK Limited
In this recent case (2023) the employment tribunal awarded almost £360,000.00 compensation to the Claimant after she brought claims for sexual harassment, victimisation and constructive dismissal.
Mistakes made by the employer
- The employer was criticised for failing to accede to the Claimant’s request for the matter to be dealt with informally and for failing to allow the Claimant to explain how she thought the matter could be resolved.
- The employer failed to carry out the necessary investigations to establish the facts. Allegations should be put to the perpetrator to permit them to give their account and thereafter allow the complainant the opportunity to address it before conclusions are reached.
- Allowing the perpetrator to remain in his job following the Claimant’s grievance being upheld.
There have been several high-profile cases in the media in recent years, including the BBC and the Harvey Weinstein case did much to raise awareness of sexual harassment, resulting in the #MeToo movement.
It is expected that with the new Labour government coming into power the rights of employees will be extended. One example of this may be that employees will be eligible to claim unfair dismissal from day one of their employment. At present an employee must have worked for the employer for two years before becoming eligible to claim unfair dismissal.
However, there is no minimum service eligibility requirements for sex discrimination.
At present an employee has 3 months to issue a claim in the employment tribunal for both unfair dismissal and sex discrimination/sexual harassment, but it would not be surprising if the new government extended those time limits.
Compensation
Uplift for failure to follow the ACAS code
The employment tribunal can increase compensation by up to 25 per cent if an employer fails to follow the ACAS code.
If a claim for sexual harassment is successful, the employment tribunal will consider applying an uplift of up to 25% to the compensation awarded if it finds there has been a breach of the new duty. In Tahir the employment tribunal awarded the Claimant an uplift of 15%for the employer’s failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures.
Injury to feelings
The amount of compensation is determined by an employment tribunal by reference to the guidelines established in Vento v Chief Constable of West Yorkshire Police.
There are 3 brackets. Lower bracket, middle bracket and upper bracket.
- Lower bracket: £1,200 to £11,700. These awards are made for less serious cases, eg where there is a one-off or isolated incident.
- Middle bracket: £11,700 to £35,200. For cases that are more serious but do not merit an award in the upper band.
- Upper bracket: £35,200 to £58,700. This band is for the most serious cases, eg where there has been a lengthy campaign of harassment.
The Vento brackets are reviewed periodically by the President of the Employment Tribunals but are correct as at July 2024.
Wrongful Dismissal
This is a breach of contract, eg if an employee has been dismissed without notice or notice pay.
Aggravated Damages
An employment tribunal can make an award of aggravated damages in certain cases, eg where an employer has ‘behaved in a high-handed, malicious, insulting or oppressive manner in committing the act of discrimination or, where its conduct of its defence to the discrimination claim is designed to be intimidatory.’
Psychiatric Injury
The amount awarded under this head will depend upon the severity of the symptoms and the effect on the Claimant’s health.
And finally………
A finding of discrimination/harassment/victimisation can have a damaging effect on the reputation of the business. The following steps should be taken to prevent and address sexual harassment in the workplace.
- Have a zero tolerance policy in place and ensure that it is rigorously adhered.
- Have clear and confidential reporting channels in place.
- Ensure managers must be trained to recognise inappropriate behaviour and how to deal with complaints. Such training must be kept up to date.
- Policies and procedures must be kept up to date.
- If the employee wishes to raise a formal grievance then a meeting should be held as soon as reasonably possible and accurate minutes taken and agreed.
- Allow the employee to be accompanied by a work colleague or a trade union official.
- Following the meeting write to the employee confirming that an investigation will take place.
- Thereafter write to the employee setting out what action you intend to take to resolve the grievance. If the grievance is not upheld give the employee the right to appeal. Again, the employee has the right to be accompanied at the meeting. The outcome must be communicated in writing to the employee.