Sexual harassment means unwanted conduct of a sexual nature that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, or offensive environment. This could be anything from innuendo or jokes, to more extreme acts of a sexual nature, such as groping or making sexual advances.

The Duty

The Duty requires employers to take positive steps to prevent sexual harassment. In practice, this means employers need to anticipate scenarios in which staff may be subjected to such behaviour in the workplace and take steps to prevent it. The definition of “workplace” is broad, and includes office parties, away days, work drinks events, and attending client/customer events.

Consequences of breach

Individuals cannot bring a standalone claim for a breach of the Duty. They must first be successful in bringing a harassment claim against the employer. That will then trigger an obligation on the employment tribunal to consider whether, and the extent to which, the Duty has also been breached.

If a Tribunal finds that the employer breached the Duty, it may order the employer to pay an uplift to the compensation already awarded the individual in respect of their claim. The uplift should reflect the extent to which the employer breached the Duty, and is capped at 25% of the compensation awarded to the individual.

The Equality and Human Rights Commission (EHRC) has direct enforcement powers over the Duty, including the power to investigate employers and to issue an unlawful act notice if it finds a breach has been committed.

Top tips

The EHRC has published updated and new guidance on the Duty and steps employers should take.

Key recommendations include:

Carry out appropriate risk assessments.

Identify circumstances which pose a greater risk of sexual harassment occurring (such as informal/social events), and the practical things which can be done to minimise risks.

Review/update policies.

Ensure relevant policies (e.g. anti-bullying and harassment and disciplinary and grievance policies) are up to date, easily accessible, and refer, where appropriate, to the Duty.

Provide training to staff.

Train staff at all levels to remind them of the standards of conduct and behaviour expected of them. Make clear these standards extend to informal/social gatherings. Tailor training for managers to include how to deal with reports of sexual harassment.

Make it easy to come forward.

Make reporting incidents less intimidating. For example, employees should be able to report sexual harassment in a number of ways, whether through a specific phone line, online form, independent third party, via an anti-sexual harassment “pioneer” internally, or anonymously.

Francesca is a Senior Associate in the Employment team. She has extensive experience acting on both sides of the negotiating table, and handles the full spectrum of employment law issues. Francesca has successfully represented employers and senior executives in Employment Tribunal claims, and specialises in discrimination, sexual misconduct, unfair dismissal and whistleblowing. She has a particular interest in regulated industries.

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