Sexual harassment in the workplace in the United Kingdom

The legal definition of harassment in the Equality Act 2010 is “unwanted conduct which violates someone’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment”.

In addition to the general prohibition on harassment there is a specific provision in the Equality Act regarding sexual harassment.  Section 26 of the Equality Act 2010 prohibits three types of harassment in relation to the protected characteristic of sex:

  • sex-related harassment i.e. unwanted conduct related to the protected characteristic of sex;
  • harassment of a sexual nature i.e. unwanted conduct of a sexual nature; and
  • less favourable treatment based on a person's rejection of, or submission to, sex-related harassment or sexual harassment.

A consultation in 2019 also considered introducing a number of changes in order to tighten up the law on workplace harassment. In January 2020 the UK Equality Body, the Equality and Human Rights Commission (EHRC), published technical guidance on workplace harassment, which it is anticipated will form the basis of a statutory code of practice when the government publishes its response to the 2019 consultation. The EHRC has also published Guidance on the misuse of Non Disclosure Agreements (NDAs) or confidentiality clauses in discrimination cases.

2. Are employers in this jurisdiction required to take pro-active action to prevent sexual harassment in the workplace?

While there is no specific set of rules regulating the steps that private sector employers must put in place to prevent harassment in the UK, in order to avoid becoming vicariously liable for the actions of employees who harass their colleagues an employer should put in place a system known as reasonable steps, which includes training, policies and a preventative approach.

Certain public authorities are obliged to comply with the Public Sector Equality Duty (PSED) which says that employers should pay “due regard” to the need to eliminate harassment and discrimination. This means that employers should consciously consider these issues when making decisions. An employee cannot bring a claim for a breach of the PSED, enforcement is via the EHRC, and would not occur for a one-off instance of harassment.  

3. Has the #MeToo movement had a noticeable impact on the number of harassment claims against your employer clients?

Yes. We have seen a noticeable increase in our clients receiving harassment complaints, both in the form of internal complaints and Employment Tribunal claims. We have also seen a significant increase in requests to provide training to clients on this issue to drive cultural change of what standard of conduct is appropriate and to help them recognise the sort of innocuous behaviours that can constitute harassment. Clients are also looking at improving their internal processes for dealing with complaints and are refining their investigation procedures and also making the reporting process easier for employees. In our view there has been a significant cultural shift and, for example, for the first time in the UK we have seen large professional service firms publicly acknowledge that they have dismissed senior individuals because of their behaviour.

An individual can bring an Employment Tribunal complaint of harassment against the employer and against the individual employee who has harassed them. Compensation for harassment is potentially uncapped. While some very high awards are made, the average award for sex discrimination in 2019 was just under £9,000.

5. On a traffic light red/amber/green scale, how high a priority is tackling sexual harassment for clients in this jurisdiction?

We would say this currently sits in the red category. We ran a series of events in the UK in 2019 named ‘think tanks on harassment’ and we had a significant number of clients sign up to attend our sessions which highlights the level of client interest. In addition, the fact that the UK Government announced a package of 18 different measures to tackle workplace harassment is evidence that on a political level this issue is a priority issue. It is also an area where industry regulators (like the Financial Conduct Authority) are now taking an active interest which again means it is high up clients' risk agendas.

6. Any other relevant information on workplace harassment?

What is particularly interesting about the current position in the UK is that so far there has been no changes to the law; a number of different factors have come and driven recent developments to make that change. The public perception of harassment and the reputational damage it can have on organisations has changed. There has also been some subtle shifts in power towards the harassed individual. Individuals can take to social media and complain not only about an individual harasser’s behaviour but also an organisation’s response to it. Perhaps the biggest concern for many of our clients is whether in fact they have a wider issue which they are not aware of; examples like that involving Google show how issues can (with the help of social media) escalate from an individual employee concern to a global problem in a very short period of time. If clients find themselves in that unlucky position, they want to be prepared and have a positive story to tell of what they are doing in this area.

7. Are you aware of any sectors which have been particularly affected by, or concerned with, harassment? For example, where reports of complaints are high, or the media have exposed an issue, or regulators are taking action?

Media and financial services.