Employers duty to prevent sexual harassment

From the 26th of October 2024, new changes to The Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force, placing greater responsibilities on employers to prevent sexual harassment.

The legislation will introduce a duty on employers to take ‘reasonable steps’ to prevent sexual harassment in the course of employment and recent cases before the Tribunal demonstrate how seriously employers must take this new duty.

In the recent case before the Employment Tribunal of Ms E Nunn v G. & M.J. Crough & Son Ltd [2021], Nunn was asked by her boss to attend a meeting with a client because they like “pretty women”.

This was considered demeaning by Nunn and she purported that this would not have been said to a male employee.

Whilst there were many claims made by Nunn that were dismissed by the tribunal, they upheld this claim, stating that the “pretty face” comment was unwelcome and demeaning of Nunn’s role and would not have been said to a man – nor would an equivalent comment about a male colleague’s physical attractiveness have been used as a reason for being invited to a work meeting.

The case highlights the need for employers to recognise and understand sexual harassment as even innocent comments and compliments towards women can amount to sex discrimination and harassment.

It doesn’t matter what the intention of the comment was, if it is of a sexual nature and had the purpose, as in this case, of violating dignity, it will be harassment.

In the case of Holly Merriman v Bugibba Independent Limited [2024], this case further highlights the need for employers to ensure a full and fair procedure is in place for handling sexual harassment complaints.

In this case, the claimant was bear-hugged, backed into a corner and had her bottom grabbed.

The Tribunal found that this conduct was “entirely unwanted” and “had the effect or purpose of violating the claimant’s dignity.”

In this case, however, it was the Company’s failure to deal with the incident once reported that amounted to victimisation as the claimant’s complaints were not investigated and she was encouraged to forget the incident and move on.

The tribunal felt that the respondent had overlooked the allegations – and the evidence that supported them – to get the ‘easiest’ resolution and awarded the claimant £31,000.

Complaints of sexual harassment are definitely on the rise and come October, when employers fail in their duty to prevent sexual harassment within the workplace, tribunals can uplift compensation awarded by up to 25%.

In addition, the Equality and Human Rights Commission will have the power to take enforcement action against the employer.

These cases and the new legislation highlight the importance of ensuring steps are in place to prevent sexual harassment in the workplace.

So what should employers do?

• Create a culture of zero tolerance of sexual harassment including third-party harassment.
• Ensure that there are clear and robust policies and procedures in place around sexual harassment within the workplace and that these are readily available to all staff.
• Provide regular access to training for all employees, outlining what is considered acceptable and non-acceptable behaviour in the workplace.
• Create a range of effective channels for reporting and investigating incidents of sexual harassment.