Sexual Harassment – do you and your employees know where the line is?

What constitutes sexual harassment?

Despite ever increasing awareness around sexual harassment in the workplace, many employees still misunderstand what legally constitutes sexual harassment and, as we frequently see, this can lead to complaints and significant liability for employers, which could have been avoided.

It is commonplace for employees, especially in casual or close-knit teams, to think they know where the line is. What they often don’t realise is it’s not about intent, humour, or history, it is about impact, perception and context.

Ensuring your employees truly understand what constitutes sexual harassment under UK law is essential for building a safe, respectful, and legally compliant working environment.

What is sexual harassment – legal definition

Sexual harassment occurs where both:

• A engages in unwanted conduct of a sexual nature.
• The conduct has the purpose or effect of either violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(Section 26(2), Equality Act 2010.)

What constitutes sexual harassment – additional guidance

Alongside the broad legal definition, the Equality and Human Rights Commission (EHRC) and case law has helped to further clarify the boundaries. It is some of these finer points that are often unknown or overlooked.

It is therefore important that you and your staff members are aware that:

• A person can be sexually harassed by someone of the same or a different sex.
• Unwanted conduct of a sexual nature is any unwanted verbal, non-verbal or physical conduct of a sexual nature.
• The victim does not have to make an express objection to the conduct before it is deemed to be unwanted.
• A single incident, which does not have an enduring effect, could violate a person’s dignity in the moment and therefore be enough to constitute harassment.
• Sexual conduct that has been welcomed in the past can become unwanted.
• The fact that the employee has put up with conduct for years does not mean that it cannot be unwanted.
• The conduct does not have to be intentional. Even if the harasser claims they meant no harm, what matters is the effect it had on the person and whether it was reasonable for them to feel harassed.
• The fact that an employee initiates “banter” (for example, as a coping strategy) does not mean that any reciprocal conduct they receive cannot be unwanted.
• An employee may succeed in a claim for sexual harassment when a consensual relationship ends and the other party’s conduct becomes unwanted.
• The conduct does not need to be motivated by sexual interest.
• There may be circumstances in which a course of conduct is not unwanted in the earlier stages, but at some point ‘oversteps the mark’ and becomes unwanted.
• The conduct does not have to be directed at the individual who seeks to make a claim.
• The Equality Act 2010 prohibits sexual harassment ‘in the course of employment’. This includes not just what happens at the workplace during working hours, but also work-related social events, after-work drinks, and business trips.
• The fact that the harasser is in a more senior position to the victim can be a relevant circumstance.
  

An employer’s preventative duty

As you may already be aware, since 26 October 2024, all employers have a duty under the Equality Act 2010 to take reasonable steps to prevent sexual harassment of employees during the course of their employment. This includes harassment by other members of staff and by third parties such as customers, service providers and visitors. The expectation is that employers are proactive in taking preventative steps rather than just responding after the fact.

Employment tribunals have the power to uplift compensation by up to 25% where an employer is found to have breached their preventative duty. Considering the compensation awards for harassment claims are uncapped, the additional uplift has the potential to be substantial.

Steps for employers to take

The steps an employer should take to prevent sexual harassment in the workplace are not set out in law. What we do have, however, is the EHRC’s 8-step guide on preventing sexual harassment at work, which is likely to carry significant weight in employment tribunal decisions. This guidance can be found on the below link.

https://www.equalityhumanrights.com/employer-8-step-guide-preventing-sexual-harassment-work

Different employers may action their preventative duty in different ways, but it is clear that all employers must take action and no employer is exempt.

To note, if previous complaints of harassment have been raised it is likely to significantly raise the bar in terms of the employer’s preventative duty, because the employer is no longer dealing with a hypothetical risk there is actual knowledge of the issue. In instances such as these an employment tribunal will be more likely to heavily scrutinise the subsequent actions the employer has taken.

The importance of raising awareness

Sexual harassment is a significant ethical and legal issue that affects individuals’ dignity and mental wellbeing. In today’s workplace, it is essential that all staff, at all levels, understand that seemingly small behaviours can have a serious emotional, legal and organisational impact.

Too often, there is a dangerous assumption that sexual harassment is limited to physical or overt advances. In reality, UK employment law sets a far broader and more nuanced standard for what constitutes sexual harassment.

We strongly advise that employers proactively seek to encourage work environments where respectful behaviour is the norm, and where all employees feel safe to speak up when lines are crossed. A respectful workplace doesn’t happen by accident, it is the result of informed people, clear policies, and strong leadership modelling professional behaviours. 

If you would like support in complying with your duty to prevent sexual harassment, including implementing / reviewing a sexual harassment policy, risk assessment or you would like to arrange sexual harassment awareness training, please do not hesitate to contact a member of our team.

Additionally, we have readymade documents to assist you in meeting your legal obligation to prevent sexual harassment available on the below link.

Sexual Harassment Prevention Documents for Employers