Sexual Harassment And Discrimination In The Workplace – A Guide For Employers
In this guide, we help employers understand the risks of sexual discrimination and harassment, explain the law surrounding both issues, and give practical steps to help ensure your workplace is as safe as possible.
Sexual discrimination and harassment legislation has been an important component of UK employment law for several decades. However, the figures suggest that legislation alone cannot prevent employees suffering from both sexual discrimination and harassment in the workplace.
A report from Trade Union Congress (TUC) found that 52% of the 1,533 women surveyed have experienced sexual harassment in the workplace. This figure rises to 63% when the age bracket is narrowed to 18–24-year-olds.
In addition to this, recent CIPD research shows that women in particular are much more likely to suffer from this sort of discrimination or harassment. Employees also think that businesses are not doing enough to combat the issue, with 24% saying issues like bullying and harassment are often swept under the carpet by their employer.
While employees have a personal responsibility to act and behave in an appropriate way, employers can be vicariously liable for any acts of harassment or discrimination by their employees. This is why it is vitally important for every business to take any complaints or concerns about sexual harassment very seriously, while also striving for a safe atmosphere for all members of staff.
In this below guide, we explain what constitutes sexual harassment and discrimination and give employers some tips for dealing with any problems that do arise.
What Constitutes Sexual Harassment?
Harassment, more generally, is when an individual, or a group of people, makes an employee feel distressed, humiliated or threatened. Harassment is unlawful under the Equality Act 2010. It may involve a colleague spreading malicious rumours, treating an employee unfairly, or denying a particular person training or promotion opportunities. It is commonly known as bullying.
Sexual harassment occurs when this unwanted behaviour is of a sexual nature. This unwanted sexual behaviour which violate an employee’s dignity, makes them feel degraded or humiliated, or creates a hostile and offensive environment.
The law protects the following people from sexual harassment at work:
- Employees and workers
- Contractors and self-employed people hired to personally do the work
- Job applicants
Employees subjected to sexual harassment are not required to have previously objected to someone’s behaviour for it to be considered unwanted.
Examples of Sexual Harassment
While this is not an exhaustive list, examples of sexual harassment can include:
- Unwanted touching, hugging, massaging or kissing
- Sending sexually explicit emails and text messages
- Propositioning and making sexual advances
- Making promises in return for sexual favours
- Sexual microaggressions
- •Making insulting comments about someone’s gender identity or sexual orientation
- Criminal behaviour such as assault, stalking and indecent exposure
- Suggestive looks, excessive staring or leering
Who Is Responsible For The Harassment?
While anyone who sexually harasses someone at work is ultimately responsible for their own actions, employers do have a duty to prevent sexual harassment happening in the first place.
Employers can find themselves liable for something their employee does through something called “vicarious liability”. By law, employers must do everything they reasonably can to protect staff from sexual harassment.
The employer could be deemed responsible even if the harassment takes place outside of the workplace. If, for example, the sexual harassment takes place at a work party, or through social media that is linked to the employer, the business may be liable for any potential claims.
Employers also have a “duty of care” to look after the wellbeing of their employees, more generally. If any employer does not take care of their employees, they could be in breach of their employment contract. If the employee who was subjected to harassment is forced to quit their job, the employer could face a claim for constructive dismissal.
How Should Employers Deal With Reports of Sexual Harassment?
Any complaint of sexual harassment should be taken very seriously. Employers must follow a full and fair procedure in line with the ACAS Code of Practice on disciplinary and grievance procedures. The code states that you, as an employer, must:
- Take any sexual harassment complaint very seriously, no matter how small the matter may seem
- Establish the facts, the more serious the allegations then the more thorough the investigation should be
- Follow procedures fairly and sensitively
- Set out what the procedure will be
- Handle the complaint without unreasonable delay
You may have a specific sexual harassment policy which details the next steps. If so, the employer must follow the policy and procedure and inform all parties of the process.
If the case reaches an employment tribunal, they will expect the employer to have taken all necessary steps to have first avoided the sexual harassment, while also following the procedures after the complaint has been raised. If it is found an employer has not done either of these things, the employment tribunal may find the employer liable to a claim.
Employees may also want to solve the matter informally. This does not mean it is not as important as an official complaint, in some circumstances (depending on the seriousness of the complaint and evidence) it may still be appropriate to address the allegations against the harasser via the formal disciplinary procedure despite the complainants request for informal action. The formal grievance procedure is always open to the employee raising the allegations if their informal complaint has not resolved the issue or if it the sexual harassment is of a severe nature.
What Is Sexual Discrimination?
Sex is one of the nine protected characteristics under the Equality Act 2010. Sexual discrimination can occur when an employee is treated unfairly because they are a man or because they are a woman.
Sexual discrimination can be direct or indirect. This means that the discrimination does not need to be deliberate for it to be considered unlawful. Sexual discrimination in the workplace could be a one-off action from an employee, or it could be caused more generally by a workplace rule or policy.
There are, however, some circumstances where being treated differently due to your sex could be deemed lawful. If, for example, being a particular sex is essential for a job, the employer has an “occupational requirement”. An example of this may be a gym employing a female changing room attendant for the female changing rooms.
Businesses can also take “positive action” to encourage or develop a particular sex in a particular role. An engineering company, for example, may actively state that applications from women are welcome.
Examples of Sexual Discrimination
Direct Sex Discrimination
- Giving a promotion to a male employee over a female employee, even though the male has less experience and qualifications
- Job applications that state the role as “Salesman” or similar male-orientated names
- Difference in pay for similarly qualified male and female employees
- Sacking a woman because they are pregnant
- Sexist abuse and harassment also fall under sexual discrimination
Indirect Sex Discrimination
- A workplace policy that does not apply equally to both men and women
- Refusal to recruit part-time workers without objective business grounds for doing so
- Not allowing flexible working for childcare without any legitimate business reasons for doing so
- Setting a minimum height on job applications which may impact women without any genuine objective business reasons for doing so
Avoiding Sexual Harassment and Discrimination in The Workplace
Below are five steps that employers can take to help ensure sexual harassment and discrimination is kept to a minimum within the workplace. Following these steps can help nurture a positive, healthy workplace atmosphere.
1. Create an effective anti-harassment policy
Within this policy you should make clear to all employees that sexual harassment and discrimination will not be tolerated in the workplace. You should detail that sexual harassment and bullying may lead to disciplinary action, up to and including dismissal.
Define what sexual harassment is and provide clear examples of it. You may want the examples to be specific for your individual company or industry.
Include information surrounding the complaints procedure, with clear steps and actions. Ensure to cover each area of your organisation, particularly if you have different types of workers in different sites.
2. Raise Awareness
Make sure staff are aware of this policy. Part of each employee’s induction should include information surrounding sexual harassment and your policies. Those who are aware of the behaviours that may be interpreted as sexual harassment may be less likely to behave in an inappropriate way.
Conduct regular 1-2-1’s with employees, create anonymous staff surveys and have open door policies for any type of sexual complaint.
Make sure every member of staff is aware of how they can report sexual harassment, the policy, and the consequences of breaching the policy.
3. Assess your working practices
Do a risk assessment of your current business practices. Are there areas that are more at risk of sexual harassment or discrimination? Is there any area of your business that has a power imbalance? Is a particular group of people more insecure in their job because of a policy? Is there a lack of diversity in your workforce which might perpetuate inappropriate behaviour?
Ensure you keep these particular parts of your business in mind when rolling out new policies or recruiting.
4. Ensure Reporting Is Straightforward
Every employee must feel confident in reporting any sexual behaviour that makes them or other staff feel uncomfortable.
Ensure the reporting process is straightforward and clear for employees and that the procedure is laid out in the workplace policy. Businesses may consider using a reporting system that allows employees to raise an issue either anonymously or in name.
Many businesses also nominate a dedicated person in place to review any allegations.
Employees who feel that the reporting systems are not good enough or complicated may simply “grin and bear it” rather than actually taking steps to raise the issues.
Every employee should have regular training on sexual discrimination and harassment, including refresher training on an annual or as-needed basis. These training sessions should detail:
- What sexual harassment looks like
- What to do if they experience sexual harassment or discrimination
- How to handle complaints, if they are management or HR
How can Percy Hughes & Roberts help?
Ensuring your workplace is free from sexual harassment and discrimination should be a high priority for any business owner. Not only will it help your company avoid any potential employment claims against your company, but it will also foster a healthy atmosphere in the workplace, aiding productivity and morale.
Creating this safe atmosphere can be easier said than done, however. Employers should strive to protect all of their employees by creating clear sexual harassment policies and enforcing them whenever they are needed. They should also ensure that all employees feel comfortable enough to report any potential issues.
Percy Hughes & Roberts can help business navigate any potential sexual harassment or discrimination problems within the workplace. Our employment law experts can advise on any potential pitfalls and ensure your business is doing all it can to avoid sexual harassment complaints.
At Percy Hughes & Roberts, our Head of Employment, Sarah Simcott, boasts years of experience and promises a confidential, friendly, and honest approach to all issues within the employment law field, particularly issues involving discrimination and harassment.
If you have any questions regarding harassment and sexual discrimination and the complexities that come with it, you can get in touch with us for expert advice. Get in touch with our Wirral Employment Law Lawyer today by calling 0800 781 3894 or by completing the “Get in touch” form on this site.
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