A Review of Sexual Harassment in the Workplace and how it impacts Employers for 2023 Pt 1.

06 January 2023 8 min read
Disciplinary (1)

Harassment at work. The world is moving on, is your business?

Harassment at work has never had a bigger profile than as we enter 2023. Most commentators agree that the standards, rules, policies, and attitudes that currently prevail will no longer be fit for purpose going forward. Organisations and businesses will need to give urgent and serious attention to revising, re-framing, and re-profiling what they have in place today to address sexual harassment in the workplace. If they don’t, not only will they be failing to protect their employees, but could be leaving their business open to prosecution.

What is driving this seismic shift ?

Public campaigns 

The Me Too phenomenon has of course been one of the most dramatic developments in recent times. Me Too was actually begun (by Tarana Burke) as long ago as 2006 but of course exploded into viral awareness in 2017 and 2018 with the Harvey Weinstein accusations and prosecution. This case and the global messages and support that it generated has led to a spectacular catalogue of dismissals, resignations, and prosecutions of very senior male executives, leaders, and personalities. The movement received further reinforcement of its profile in December 2022 when Weinstein was prosecuted again, found guilty of rape, and seems likely to spend the next 47 years in prison.

Survey evidence

UN Women UK commissioned a survey in 2021 which revealed that 71% of the 1,000 women surveyed, reported that they had experienced some form of sexual harassment. The figure rose to 86% among 18-24 year-old women. An even more disturbing statistic is that over 95% of the respondents did not report their experience, rising to 98% for 18-24 year olds. The survey report has led to an All Party Parliamentary Group (APPG) being established to consider legislating for new, clearer, and specific definitions of harassment and new frameworks and support mechanisms to increase levels of reporting, supported by stronger penalties for offenders.

In parallel, the Equality and Human rights Commission (EHRC) produced a report (Turning the Tables), and called on the UK Government to implement and legislate in respect of their three headline recommendations contained in the Report, (1) Transforming Workplace Culture, (2) Promoting Transparency), (3) Strengthening Legal Protections. The EHRC quite properly goes into considerable detail regarding sexual harassment in the workplace, predominantly perpetrated by more senior male colleagues. The Report recognises that many employers have policies and training in place to address this but makes a compelling argument that such policies and training urgently need strengthening. Respondents repeatedly referenced examples of senior management and HR departments “protecting” very senior individuals who were perceived as “untouchable” and victims being advised or encouraged not to report or make formal complaints.

The Report is extremely critical of how employers address harassment of female staff by customers and clients. The hospitality, retail and sales sectors were particularly criticised, and  a litany of horror stories are described in the report. The EHRC recorded its concern that fewer than 30% of employers who responded had ever evaluated their harassment policies and training, and of those in the identified sectors, less than 25% acknowledged that sexual harassment by clients/customers was a problem

It is against this backdrop that legislators and the judiciary are reflecting the new paradigm in new statutes and in binding legal judgements.

Legal cases redefining the sexual harassment in the workplace issue

The recent UK case of Gartner UK Ltd and Fricker included some exceptionally robust descriptions and definitions as to what constitutes sexual harassment, what constitutes “banter”, and what organisations should have in place in terms of policies and training around harassment. The Judge identified that “language evolves over time, words and phrases that might once have seemed harmless are now regarded as racial, homophobic or sexist slurs”. Ms Fricker repeatedly asked, verbally and in writing that her senior manager refrain from calling her “the girl”, “ good girl” and other variations of the word. The Judge confirmed that this was found to be demeaning and discriminatory. The Tribunal further found that the senior manager had made inappropriate comments about the Claimant’s appearance, threatened to incorporate photographs of her in a PowerPoint presentation to the senior team, made unwanted sexual advances and posted what the Judge found to be vile and sexist private and group WhatsApp messages. The Company was found not to have taken her grievance seriously, that the most senior managers and HR professionals had effectively closed ranks, largely exonerated the manager and portrayed the claimant as being culpable for “creating” the situation. This high-profile global consulting company was found to have a harassment policy that was weak, out of date and “of poor quality”. Their harassment training was also “inadequate”, out of date, not appropriately promoted, evaluated or followed up.

Legislation that is addressing the sexual harassment in the workplace issue

Apart from case law the UK Government is also progressing new and much stronger legislation which has clearly been informed by the EHRC and APPG reports referenced above. The Worker Protection (Amendment of Equality Act 2010) Bill has recently had its second reading in the House of Commons and is expected to become law, potentially in 2023. This legislation will-

  1. Create a liability for employers where there is harassment of workers by third parties such as customers, clients and service users
  2. Introduce a statutory duty on employers to take all reasonable steps to prevent sexual harassment of workers
  3. Strengthen the enforcement powers of the EHRC and Employment Tribunals
  4. Establish a formula and framework to enable Tribunals to make additional awards and to uplift awards by up to 25% where employers are found to have contravened points 1 and 2 above.
  5. Formally and explicitly amend the Equality Act to implement these changes.

Here in Jersey we know that our Tribunal judges are quite properly influenced and informed by key UK judgements. With our States Assembly better reflecting the population’s gender balance and more women in senior ministerial positions, it’s even more likely that the new UK legislation will find an empathetic ear. Jersey businesses (and especially those with UK connections) must take note of the changing responsibilities and potentially liabilities for them as employers.

Read the second part of this Review of Sexual Harassment in the Workplace looking at what you must be doing now as an employer to ensure you are protecting your staff and your business.

You can also sign up for our newsletter and receive critical updates, like this, in your inbox.