Sexual harassment – could employers be liable for their employees' acts?

Employers who do not take steps to create a culture where sexual harassment is identified and dealt with effectively could face liability in sexual harassment claims as well as liability for the acts of their employees. As the stigma around speaking out may be lifting, we could see an increase in claims, with employers coming under more scrutiny; did they take all reasonable preventative steps, or could they have done more?

Under the Equality Act 2010, sexual harassment is defined as unwanted conduct of a sexual nature which has the purpose or effect of violating the dignity of a worker or creating an intimidating, hostile, degrading, humiliating or offensive environment. It can include verbal comments, unwanted physical contact, sexually natured emails and sexual gestures and need not be intentional. Sexual harassment can also occur when a worker is treated less favourably because they submitted to, or rejected unwanted conduct of a sexual nature, or unwanted conduct related to sex. Employers are liable for their employees’ acts of harassment which take place during the course of employment (including conduct at work social events) whether or not the actions were done with the employer’s approval or knowledge (“vicarious liability”). Under section 109 of the Act, employers can defend a claim for harassment if they can demonstrate they have taken all reasonable steps to prevent the employee from carrying out the acts.

In many claims, both the employer and alleged perpetrator may simply deny that harassment took place. However, the employer may want to distance themselves from the alleged perpetrator and rely on the section 109 defence. To succeed, it must show that it proactively took steps to prevent sexual harassment; this will involve having effective policies and procedures, providing training where required, and responding appropriately to complaints.

What should employers do?

In March 2018, the Equality and Human Rights Commission published its report Turning the tables – Ending sexual harassment at work (recent report) which includes a number of broad recommendations:

• A change in workplace culture with employers taking more responsibility for preventing harassment.
• Greater transparency about incidents of harassment and the policies to prevent them.
• New laws to strengthen protection for victims.

The recommendations include a new statutory Code of Practice regarding the prevention of and response to sexual harassment (with an uplift of up to 25% to Employment Tribunal awards for breach), developing targeted sexual harassment training for managers and staff and creating a confidential online reporting tool for employees. The EHRC also recommends changes to the law, including increasing the time limit for harassment claims to 6 months from the last act of harassment, or the last in a series of incidents, or the end of any internal grievance procedure.

With potential changes ahead, employers should consider:

• Creating a separate sexual harassment policy, clearly defining sexual harassment, setting out a zero tolerance approach and explaining the reporting structures in place – the EHRC and ACAS has guidance on what to include.
• Training all staff on sexual harassment in the workplace.
• Reducing barriers to reporting, including a confidential reporting facility.

Madeleine Mould is a Solicitor at Blake Morgan and advises on a wide range of employment issues, both contentious and non-contentious – from the conducting of and settling of Employment Tribunal cases to managing employee relations processes.