Sexual harassment in the spotlight

On 23 March 2023, the Equality and Human Rights Commission (EHRC) published that they had entered into a legal agreement with IKEA UK under which IKEA UK is to improve its policies and practices in relation to sexual harassment. This follows a complaint about how allegations of sexual harassment and assault were handled after they were raised by a former employee.

Only a month prior, McDonalds entered into a similar agreement with the EHRC after the Bakers, Food and Allied Workers Union suggested that there may be more than 1,000 reported instances of sexual harassment levelled at the chain.

The EHRC is the regulatory body responsible for enforcing the Equality Act 2010 (the EqA). Under section 23 of the Equality Act 2006, the EHRC is given powers to enter into these kinds of agreements with organisations where they have evidence that the organisation has breached the EqA (hence they are sometimes known as ‘section 23 agreements’). Section 23 agreements are voluntary. By entering into one, an organisation is not admitting the commission of an unlawful act, but is committing to taking various steps to address any the issues which may have led to an unlawful act (for example, sexual harassment).

These steps can include things such as communicating a zero tolerance approach to sexual harassment to employees, enhancing policies, procedures and responses to sexual harassment, delivering anti-harassment training to employees and even conducting anonymous surveys on workplace safety to understand the current climate in the workplace.

In releasing news of the IKEA UK agreement, the Chairwoman of the EHRC made clear that employers ‘should not assume that a low level of reporting means there is no problem with sexual harassment in the workplace, or that policies and procedures alone are enough to stop harassment from happening’.

So, what is the law on sexual harassment?

Under section 26 of the EqA, sexual harassment is defined as occurring when a person engages in unwanted conduct of a sexual nature which has the purpose or effect of violating another person’s dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment for that person. In practice, an employment tribunal must consider the feelings of the individual claimant but must also take into account the wider circumstances and whether it was reasonable for the conduct complained of to have that effect.

The EHRC Employment Code gives some examples of what might constitute sexual harassment. It includes things like unwelcome sexual advances, sexual assault, sexual jokes. The Technical Guidance expands on this to make clear that it can also include conduct such as suggestive looks or gestures, intrusive questions about a person’s private or sex life or sexual posts on social media. These lists are not exhaustive.

Employees can be personally liable for acts of sexual harassment, but employers can also be liable unless they can show they took ‘all reasonable steps’ to prevent the harassment occurring. What is reasonable depends on the circumstances but recent case law has established that there is a high bar for this defence to be satisfied and employers should bear in mind that it is unlikely to be enough to simply have an anti-harassment policy in place, especially if it is not regularly updated and communicated to employees and in the absence of training on the policy.

Proposed reform

The Worker Protection (Amendment of Equality Act 2010) Bill seeks to reform certain areas of the law on sexual harassment in the UK. It is currently passing through Parliament and is expected to become law some time in 2024.

If enacted, the Bill will introduce a positive duty on employers to prevent the sexual harassment of their employees (including a penalty uplift in compensation of 25% for failure to do so). It also re-introduces the concept of third-party harassment (revoked in 2013), making employers liable for instances harassment of employees by third parties (e.g. a customer) if the employer has failed to take all reasonable steps to prevent it from occurring. The pre-2013 position required three instances of harassment to enable a claim to be brought, but this Bill requires only a single act.

Concerns have been raised in Parliament as to the Bill’s impact on free speech. Consequently, new sections were inserted to exclude liability where an expression of opinion on specified matters is overheard by or otherwise not made directly to the potential claimant, provided the opinion is not ‘indecent’ or ‘grossly offensive’ and does not have the purpose of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. However, this exception would not apply to unwanted conduct of a sexual nature. This presents an increasingly complex picture of this area of law.

If you have any questions about the law surrounding sexual harassment, please get in touch with our specialist employment team.