Workplace harassment is a concern across all sectors and organisations regardless of size. The TUC has found that 52 per cent of women and 63 per cent of young women (18 to 24-years-old) have experienced sexual harassment at work. Other TUC reports have revealed that 68 per cent of LGBT+ people had been sexually harassed at work, while 70 per cent of Asian and black workers had experienced racial harassment at work.
In January 2020, the Equality and Human Rights Commission (EHRC) published guidance, Sexual harassment and harassment at work, and a shorter Preventing sexual harassment at work: a guide for employers. The EHRC states that the scale of harassment “is disturbing” and has been “largely hidden because of under-reporting”.
What is harassment?
The Equality Act 2010 defines discrimination in terms of nine protected characteristics (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation) and it prohibits three types of harassment:
- harassment related to a protected characteristic;
- sexual harassment; and
- less favourable treatment of a worker because they submit to, or reject, sexual harassment or harassment related to sex or gender reassignment.
‘Harassment’ is defined as unwanted conduct related to a protected characteristic that has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual. Sexual harassment occurs when a person engages in unwanted conduct of a sexual nature that has the purpose or effect mentioned above. This can take a number of forms, such as sexual comments and unwelcome physical contact.
Crucially, harassment is not always face to face. It can occur over the telephone, by email or on social media – all of which are increasingly relevant as more people are working remotely during the coronavirus crisis.
The EHRC's view is that employers must take action to change culture and behaviours and eradicate harassment in the workplace. It says there is “no prescribed minimum” about what an employer should do, but what is reasonable will take into account the size and nature of the employer, its resources and specific risk factors for the sector. Section 5 of the guidance sets out comprehensive steps to prevent and respond to harassment. This includes employers:
- ensuring they have effective and well-communicated policies in place;
- implementing different policies for sexual harassment and harassment related to protected characteristics (or clearly distinguishing between different forms of harassment in one single policy);
- being alert to warning signs of harassment such as increased sickness absence or comments made at exit interviews; and
- addressing the risks relating to harassment; for example, power imbalances or lack of diversity in the workforce.
There have been reported incidents of racial harassment linked to Covid-19, directed at Chinese and other ethnicities. To combat this, employers should reiterate that they take a zero-tolerance approach to harassment in the ‘workplace’ – which is still applicable even when people are working remotely. Employers should ensure all workers are aware of their anti-harassment policy and remind staff about what constitutes inappropriate behaviour.
Businesses can be vicariously liable for their employees' acts done in the course of their employment. There is, however, a defence available to an employer if it can show that it took ‘all reasonable steps’ to prevent the employee from doing the discriminatory act. Taking the steps recommended in the EHRC guidance could be very helpful in establishing that defence.
Menna Chmielewski is a solicitor in the employment team at Blake Morgan