Sexual harassment in the workplace Contents

1Put sexual harassment at the top of the agenda

Summary

17.Employers have failed to tackle workplace sexual harassment, despite evidence that this is a long-standing and endemic problem that has been raised by the International Labour Organisation, among others. Incentives on employers to protect their workers from sexual harassment are insufficient. In addition, the legal protections afforded to workers varies according to their employment status and who the harasser is. Sexual harassment in the workplace needs to be at the top of the agenda for employers, and the Government needs to demonstrate that tackling sexual harassment is a priority by ensuring that this happens.

A lack of action by employers

18.We have been struck by evidence that, while there is widespread knowledge among women about workplace sexual harassment, there is a lack of awareness at the most senior levels of employers about the extent of sexual harassment in their organisations.31 This lack of awareness is in part arguably a symptom of the long-standing underrepresentation of women in leadership positions.32 Kathryn Nawrockyi recalled that businesses leaders were “shocked” when Business in the Community published survey data showing that 12 per cent of women had experienced some form of workplace sexual harassment in the preceding three years:

People did not want to think that this was happening in their organisation; they could not believe that it was happening in their organisation. Talk to the women that responded to that survey, or other women out there, and most of them would say, ‘Of course it is; it’s so normalised.’ Leaders tend not to realise that it is such a problem.33

This may help to explain why we have come across so little evidence of employers making a concerted effort to tackle and prevent sexual harassment. This is the case despite the obvious business reasons to address the issue and the fact that, under the Equality Act, employers are liable for acts of sexual harassment by one employee towards another unless they have taken reasonable steps to prevent it.

19.The Equality and Human Rights Commission (EHRC) wrote to large employers in December 2017 to ascertain how their organisations were going about preventing and addressing sexual harassment at work. The responses, from 234 employers, reinforce the impression of inconsistent and inadequate practice. While some employers had effective approaches including clear policies, codes of conduct, and strategies for communication and monitoring, they were in a small minority. Policies that purported to cover sexual harassment often made minimal reference to it: “part of a sentence on a page of a policy”.34 Only around two in five employers included information in staff induction about the behaviours expected in the workplace and how to report it when behaviour falls below that standard. Reporting was usually expected to be through a generic grievance procedure.35

20.Sue Coe, Principal for Work and Employment at the EHRC, described much of the practice that the Commission learned about as “just paper-based compliance”. She told us

You could count on the fingers of one hand the number of organisations that had rounded practice where they had taken steps to train, evaluate that training, include steps in induction, track those who had raised complaints to make sure that they were not being victimised and were not blocked in their progression in the organisation.36

21.Under the Public Sector Equality Duty, public sector bodies must have due regard to the need to eliminate discrimination, including sexual harassment. Even public sector employers, however, often have very limited information about the scale of the problem in their own organisation. While the Civil Service collects annual statistics on the extent of bullying and harassment more widely among its staff, specific information on sexual harassment is not collected. In the public sector as in the private, the prevalence revealed by surveys is not reflected in the number of reports, complaints or grievances made. Chief Constable Julian Williams, the National Police Chiefs Council lead for Professional Ethics, told us that he had canvassed 17 police forces, covering some 180,000 staff, and found that over the past seven years, 194 cases of sexual harassment had been dealt with internally.37 However, a survey of 189 senior women police officers (inspectors and chief superintendents) had found that one third said they had been subject to sexual jokes or other forms of sexual harassment.38 In the Civil Service, which employs 380,000 people, only 21 sexual harassment cases were brought as grievances in 2016–17.39

22.It should be expected that the Public Sector Equality Duty would help make public sector employers exemplars for good practice. Despite this, we found that specific actions to tackle sexual harassment in the workplace were thin on the ground, although more general initiatives on workplace conduct and ethics might be in place. The Police’s Dignity at Work policy, for example, does not specifically address sexual harassment.40 The Civil Service has an overall strand of work on bullying, harassment and discrimination, but nowhere in its diversity and inclusion strategy is sexual harassment explicitly mentioned.41 The Crown Prosecution Service (CPS) launched an anonymous helpline for bullying and harassment in January 2018, and has had an employer’s guide on violence against women since 2010, but the latter largely relates to supporting staff who may be subject to violence outside the context of work.42 The CPS also has a Dignity at Work policy with a small specific section on sexual harassment.

23.Sue Owen, the Civil Service Diversity Champion, told us that since the diversity and inclusion strategy was published in summer 2017 more specific work was being done on sexual harassment and “it is certainly much more in the consciousness of our senior leaders”.43 We heard that the Civil Service had done analysis and was testing “solutions”, but that they had not yet engaged with experts on sexual harassment and there would be a further phase of work that had not taken shape.44 Sue Owen said that the Civil Service “will now think very explicitly about whether we need a separate code on sexual harassment”.45 Chief Constable Julian Williams said that the police Code of Ethics “may need a refresh, and sexual harassment could appear in there”.46 We were left with an impression of organisations which have not taken this issue seriously in the past, which have failed to put procedures in place, and which have relied on more generic workplace policies that are not sufficient to tackle sexual harassment.

The need for strong incentives

24.This epidemic of inaction and poor practice demonstrates that employers are currently not taking this issue seriously, and that they are not adequately incentivised to take action on sexual harassment in the workplace.

25.Incentives are inarguably much stronger in other areas of corporate governance. Employment lawyer Clare Murray contrasted the approach of businesses to preventing sexual harassment with the approach necessitated by the rather more exacting requirements attached to data protection and preventing money laundering:

These are really stringent regimes that have criminal and civil sanctions. They make it clear that, for a business to be able to show reasonable steps defences, they have to have done things like undertaken very proactive risk management and risk assessments in their workplace to identify low, medium and high risks. They have to tailor their training and their policies to those risks. They have to have officers. There are sanctions if they do not have them, and they do not get the benefit of the ‘reasonable steps’ defence if they do not adhere to those proactive steps. […] we should be willing to consider placing as much importance on protecting people’s safety and their wellbeing at work as we do on their data and on preventing money laundering through businesses.47

26.Mandatory requirements, sanctions for breaches and proactive enforcement reflect the importance of an issue, its impact on society and how seriously employers are expected to take it. The anti-money laundering and data protection regimes are both supported by sets of explicit obligations on organisations, whereas there are no mandatory obligations on employers to take positive steps to prevent sexual harassment. Agencies enforcing Anti-Money Laundering regulations can issue unlimited fines, remove fit and proper status from an individual or cancel a business’s registration, among other sanctions. Non-compliance with the General Data Protection Regulation can result in a fine of up to four per cent of global turnover or €20 million, whichever is the greater. The Equality and Human Rights Commission, meanwhile, cannot even impose fines on its own account when enforcing the Equality Act. By these measures, sexual harassment is currently being allowed to sit too far down employers’ list of priorities. Unless the media spotlight happens to be on them, senior leaders simply do not have sufficient reason to worry about the consequences of failing their staff by not taking steps to prevent sexual harassment in their workplace.

27.Providing a workplace where employees have safety and dignity is no less important than other corporate responsibilities such as preventing money-laundering and protecting personal data. We call on the Government to establish a regime that ensures that it will be just as important to employers.

Relieving the burden on the individual

28.In the absence of comprehensive action by employers and of a stringent regulatory regime, the burden of tackling sexual harassment at work rests with individual workers. An individual who has suffered sexual harassment at work has the option of raising a complaint or grievance with their employer, assuming that proper processes are in place. They may bring a claim for sexual harassment under the Equality Act against their employer and against individual perpetrators in the employment tribunal. None of these are ever easy options, and they can be extremely difficult or traumatic experiences. We consider barriers to tribunal action in more detail in Chapter 3, but even making an internal report of an incident of sexual harassment is something that many victims do not want or are not able to do. Elizabeth Prochaska, Legal Director of the EHRC, described this requirement on the individual to hold perpetrators and employers to account as a “crushing burden”.48 Reflecting on the #MeToo movement, she drew from it the lesson that

really we should not be expecting individual women to go through and endure a protracted legal process in order to get access to justice in order to remedy a terrible situation at work. What that movement is about is solidarity rather than individual action.49

29.The EHRC’s proposed solution is that a mandatory duty should be placed on employers to take reasonable steps to protect workers from harassment and victimisation in the workplace.50 Ms Prochaska argued that this would lift the burden off individuals by setting a clear expectation that employers must put in place protective measures, with the intention that those measures would ultimately remove the need for individuals to seek their own remedy or use whistleblowing procedures. The duty, she explained, “says that it is up to employers to take steps in the first place”. The EHRC’s recommendation continues that breach of that duty would constitute an unlawful act that would be subject to enforcement action by the EHRC. The Commission would not, therefore, need to be concerned with whether or not an individual act or acts of harassment had occurred; instead, “we would be further upstream. We would be saying, ‘We can see that you as an organisation are simply not taking any steps to protect your employees.’”51

30.We heard differing opinions on the EHRC’s recommendation. Joanna Blackburn, a partner at Mischon de Reya, argued that it was unnecessary and that there were other stages that should be gone through before imposing a duty, such as assisting with implementation of existing laws and helping employers understand what compliance and best practice looks like.52 Michael Reed of the Free Representation Unit warned that the issue needed to be tackled on a number of fronts, not just through a duty, especially as employers are already responsible in law under the Equality Act.53 Barrister and Professor of Human Rights Law Aileen McColgan, however, was in favour, saying that it would induce employers to think about how to address the contexts—such as power imbalances and limited oversight—that are more likely to see sexual harassment occur and go unchecked.54 Dr Rachel Fenton cautioned that a duty should not simply mandate that an employer take steps: those steps must be effective. In other words, it should not be possible for employers to comply unless they have shown that they are evaluating and reviewing the actions they are taking.55

31.We agree with the Equality and Human Rights Commission (EHRC) that the burden of holding perpetrators and employers to account on workplace sexual harassment is too great to be shouldered by individuals alone. Employers must have greater and clearer responsibilities for protecting workers from sexual harassment.

32.We support the recommendation of the Equality and Human Rights Commission that the Government should place a mandatory duty on employers to protect workers from harassment and victimisation in the workplace. Breach of the duty should be an unlawful act enforceable by the Commission and carrying substantial financial penalties. The duty should be supported by a statutory code of practice on sexual harassment and harassment at work which sets out what employers need to do to meet the duty. We discuss the code further below.

33.The public sector should be leading the way on tackling and preventing sexual harassment, setting good practice examples that other employers can follow. We urge the Government to ensure that all public sector organisations take immediate action to protect workers from sexual harassment.

34.In the interim period before the mandatory duty is in place, the Government should direct public service employers to take immediate action to tackle and prevent sexual harassment in the workplace, including setting out unacceptable behaviours, how cases will be handled and the penalties for perpetrators.

35.The Government should introduce a specific duty under the Public Sector Equality Duty requiring relevant public employers to conduct risk assessments for sexual harassment in the workplace and to put in place an action plan to mitigate those risks. Action plans should set out how cases will be investigated and include guidance on penalties for perpetrators.

Third party harassment

36.Third party harassment is the harassment of an employee or worker by someone who is not an employee but with whom the employee has contact as part of their work—for example, a client, customer or even a colleague who has a different employer. A TUC survey found that seven per cent of the women who had experienced harassment reported that the perpetrator was a third party, and this was more likely to be the case for temporary and agency workers.56 Research by ComRes for the BBC in November 2017 found that, depending on the behaviour complained of, between five and 18 per cent of those who had experienced sexual harassment in the workplace said the initiator was a client or customer. For example, of those who had experienced unwanted verbal sexual advances, 16 per cent identified a client or customer as the initiator.57 Workers in the retail, catering, hospitality, care, healthcare and transport sectors have been identified as being more likely to be affected by third party harassment.58 Reports emerged in January 2018 about 130 staff who had been placed in a work environment—the Presidents Club dinner—in which sexual harassment of hostesses by attendees was at the least foreseeable, and possibly encouraged.59

Box 3: Third party sexual harassment: individuals’ experiences

“We’ve been told nothing can be done for harassment with customers except if we see someone who stalks you, [then] we are allowed to hide out back.”

“I was repeatedly harassed by a male customer, I was told to just deal with it—and had to continue serving him daily.”

Individuals who responded to EHRC survey60

“I have been whistled at whilst trying to teach, and one extreme case where a boy pushed his crotch up against my back to intimidate me. The boy was removed from my lesson once and then I was asked to accept him back in.”

Individual’s story from submission by the National Education Union61

37.In its original form the Equality Act 2010 contained provisions under section 40(2)-(4) which made employers liable for failing to protect workers from third party harassment if they were aware that harassment had previously occurred on two occasions (often referred to as a ‘three strikes’ rule), and they had failed to take reasonable steps to prevent it from happening again. Similar provisions had been in place in other legislation since 2008. Following a consultation in 2012 the Government announced that it would repeal these provisions, stating that they were not “fit for purpose”.62

38.There is very little evidence about whether or not the section 40 provisions, when they were in force, had any effect on the amount of third party harassment taking place. Only a small number of cases were taken forward under section 40(2)-(4), and these were mostly settled or withdrawn, with only one known case reaching tribunal hearing.63 Despite this, there was widespread, if not universal, support in our inquiry for introduction of measures similar in effect to those that were repealed.64 The CBI, for example, argued that

That repeal [of the section 40 provisions] has created doubt—not least in the mind of victims—about whether employers have a legal duty in instances of sexual harassment at work by a third party is damaging. The CBI believes that putting this duty beyond doubt by reintroducing section 40 would make a positive contribution to tackling sexual harassment at work. Alongside this, government should produce new guidance to help employers and employees understand this duty.65

Many argued that the ‘three strikes’ element of the original provisions should be discarded, and that a single instance of harassment should be sufficient for action.66

39.The Government argued at the time of repeal that other avenues of legal redress were available for employees who felt their employers had failed to take reasonable steps to protect them from third party harassment. These included section 26 of the Equality Act, health and safety law, the common law duty of care, the law on constructive dismissal and the Protection from Harassment Act 1997. Early in 2018 the Government reaffirmed its view that the repealed provisions had been “unnecessary, confusing and little used”, and that section 26 and the general protection against harassment in the workplace afforded by the Act were sufficient.67

40.The Court of Appeal ruled in May 2018, however, that third party harassment is not in fact covered by section 26, except in very limited and specific circumstances. Lord Justice Underhill stated in his judgment in the matter of Unite the Union v Nailard that the Equality Act “no longer contains any provision making employers liable for failing to protect employees against third party harassment as such”, and concluded that the availability of third party liability was now a matter for Parliament.68 The Minister for Women, Victoria Atkins MP, told us that the Government was “very actively considering” what steps to take in response to the judgment.69 At the time of writing it was not known whether an application to appeal this judgment would be granted.

41.If the judgment in the Nailard case stands, it would mean that the Equality Act can no longer be deemed sufficient to offer protection to employees against a failure to address third party harassment. None of the alternative legal routes cited by the Government when repealing section 40 offer a straightforward route to holding an employer to account for preventing this type of harassment. If the judgment stands, we believe that a new protection must be put in place, and this should not be restricted to cases where there were previous occurrences of harassment as was the case under the original section 40.

Protecting volunteers and interns

42.Volunteers are not expressly protected from harassment under the Equality Act and case law indicates that most volunteer arrangements and many internships do not satisfy the tests for employment status. The status of interns under the Act likely depends on whether the individual has an obligation to do work or whether they are in fact a volunteer.70 Individuals in the workplace who are entitled to protection include employees, job applicants, contract workers, partners, LLP members, barristers, office-holders and apprentices.71 There seems to us to be little reason why an organisation that makes use of volunteers and interns should not be responsible for ensuring that they too can work in an environment free from harassment, especially as they can be some of the most vulnerable people in an organisation.72

43.Everyone in the workplace should be protected from sexual harassment, regardless of whether they have a contract of employment or similar contract for services or who the harasser is.

44.If the judgment in Unite the Union v Nailard stands, the Government should bring forward legislation to place a positive duty on employers expressly to protect workers from harassment by third parties and to ensure that employers can be held liable for failure to take reasonable steps to protect staff from third party harassment. This must not be restricted to cases where there were previous occurrences of third party harassment.

45.The Government should extend the protections relating to harassment in the Equality Act 2010 to interns and volunteers so that they are entitled to the same protections as the wide range of individuals in the workplace who are already protected.

Changing expectations about behaviour

46.People have differing views about what behaviours constitute sexual harassment. This can vary markedly according to sex and age; for example, younger women are more likely to find wolf-whistling offensive than men of any age and older women. Some witnesses argued that sexual harassment could be caused unintentionally, or at least that perpetrators could be unaware of the level of upset and offence caused by their behaviour.73 In law a behaviour can be sexual harassment whether or not the perpetrator meant to harass the victim.

47.Verbal harassment and sexualised ‘jokes’ that may be made by some people on a daily basis can have the effect of creating environments in which discrimination and harassment thrive.74 We are concerned by the evidence that many people, particularly women, feel that behaviours that could constitute sexual harassment are so normalised and commonplace that they should just put up with them.75 This feeling is reinforced when colleagues and others—’bystanders’—see the behaviour but do not step in to support the victim or challenge the perpetrator. A particular issue for both victims and bystanders can be knowing how to challenge unwanted or offensive behaviours in the moment, particularly if they fear being victimised or left unsupported as a result. As Dr Rachel Fenton, a researcher into bystander intervention, explained,

the environment in which [the harassment] happens is really important, in terms of what other people’s reactions are […], how supportive they are of what you are suggesting and how other people around you act and respond. If you are met by a sea of silence and nobody shows any kind of solidarity, it reinforces that reporting is not the right thing to do.76

We received evidence of cases where co-workers had either encouraged the offensive behaviour or had belittled or further victimised the victim for complaining about or reporting it.

48.More needs to be done to raise workers’ awareness of how the law on sexual harassment protects them and what behaviours are unacceptable in the workplace. Taking action to address the social attitudes that underlie and facilitate sexual harassment is a requirement for the Government under its international obligations to tackle violence against women.77

49.All workers are entitled to a safe working environment, free from sexual harassment. It is incumbent on the Government, the Equality and Human Rights Commission and employers to make clear to all those in the workplace, including clients, customers and volunteers that all workers are entitled to be treated with respect. Employers must take responsibility for setting out within their organisation the kind of behaviours that are unacceptable and what might constitute sexual harassment or a sexual offence. However, there is also a need for wider, large-scale awareness-raising work to change the culture that enables sexual harassment to go on unchallenged.

50.The Government should work with Acas, the Equality and Human Rights Commission and employers on an awareness-raising campaign. This should include information on: the behaviours that might constitute sexual harassment; employers’ responsibility to protect workers from sexual harassment and victimisation; actions that workers can take if they are sexually harassed; how employers should help workers to challenge inappropriate behaviours; enforcement processes including tribunals; whistleblowing laws; and legal and ethical use of confidentiality clauses in settlement agreements.


31 Q331; Q472 [Dr Henrietta Hughes]

32 Q2 [Neil Carberry]; Q46 [Ksenia Zheltoukhova]

35 Equality and Human Rights Commission, Turning the tables: ending sexual harassment at work, March 2018

47 Q2

50 Equality and Human Rights Commission, Turning the tables: ending sexual harassment at work, March 2018

57 BBC – Sexual harassment in the work place 2017, survey by ComRes, November 2017

59Men Only: Inside the charity fundraiser where hostesses are put on show”, Financial Times, 23 January 2018; The Fawcett Society (SHW0030)

60 Equality and Human Rights Commission (SHW0057)

61 National Education Union (NEU) (SHW0022)

64 The Law Society (SHW0042); The Bar Council (SHW0061); The Everyday Sexism Project (SHW0051); Rape Crisis England and Wales (SHW0045); YESS Law (SHW0049); National Education Union (NEU) (SHW0022); Unite the union (SHW0035); Close the Gap (SHW0040); CM Murray LLP (SHW0019); TUC (SHW0031); The Fawcett Society (SHW0030); Member of the public (SHW0004); Ms Roseanne Russell (SHW0011); Q502 [Aileen McColgan]; Q184 [Max Winthrop]; Q274; Federation of Small Business (SHW0073); EEF (SHW0048); Law Society of Scotland (SHW0039).

65 CBI (SHW0064)

66 For example, Unite the union (SHW0035); YESS Law (SHW0049); CM Murray LLP (SHW0019).

67 PQ 125693 [on harassment], 6 February 2018; Government Equalities Office (SHW0050)

68 Unite the Union v Nailard [2018] EWCA Civ 1203 (24 May 2018)

70 Mid Sussex Citizens Advice Bureau and another [2012] UKSC 59; [2013] IRLR 76; South East Sheffield Citizens Advice Bureau v Grayson [2004] IRLR 353; Melhuish v Redbridge Citizens Advice Bureau [2005] IRLR 419; Murray v Newham Citizens Advice Bureau UKEAT/1096/99

71 Equality Act 2010; sections 39–53

73 The Law Society (SHW0042); Civil Mediation Council (SHW0087)

74 Paula McDonald, “Workplace Sexual Harassment 30 Years on: A Review of the Literature”, International Journal of Management Reviews 14(1) (2012), pp. 1–17

75 Equality and Human Rights Commission (SHW0057); The Everyday Sexism Project (SHW0051); NGO Safe Space (SHW0038); Close the Gap (SHW0040)




Published: 25 July 2018