Sufficiently managing the topic of sexual harassment in the workplace is crucial for all employers in maintaining a respectful and safe working environment. It is important that there are robust processes in place to deal with any related issues or concerns as an employer's failure to address any related concerns or issues properly or the mishandling of such matters can potentially have severe consequences.
The Equality Act 2010 defines sexual harassment as "unwanted conduct of a sexual nature that violates a person's dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment". Crucially, the behaviour complained of must be unwelcome, and its impact on the recipient must be assessed both objectively and subjectively.
A recent Employment Tribunal case has sparked debate about the boundaries of workplace behaviour, where a male manager's attempt to 'air kiss' a female colleague raised questions about what constitutes inappropriate or unwanted conduct at work.
The Tribunal concluded that the action of pursing the lips and pretending to kiss someone, while unwelcome, was not inherently sexual and cannot be regarded as 'unwanted conduct of a sexual nature'. The Judgment also considered the context, the intent behind the behaviour, and the reaction of the employee at the time, before deciding that the manager's behaviour did not meet the Equality Act 2010's aforementioned threshold.
As employers, it can be difficult to manage and reinforce workplace boundaries, however, it is imperative that employers try to stay on top of managing and addressing harassment. All employers in the UK have a mandatory duty to take 'reasonable steps' to prevent sexual harassment of their employees in the course of their employment. For more information on this duty, please visit our previous blog, "New Duty to Prevent Sexual Harassment in The Workplace and Guidance for Employers."
In addition to the above, it is noted that within the Employment Rights Bill, the Government are looking to make employers liable for harassment by third parties and that employers will be required to take 'all reasonable' steps to prevent such occurrences. Third parties would likely include, for example, clients and customers. Though the Employment Rights Bill is yet to be enforced, employers should start preparing to meet this obligation.
Key Points for Employers to Be Aware Of:
- Understanding Context and Intention
To be aware that Tribunals do place an emphasis on the importance of considering context and intention behind the relevant behaviour. - Creating Clear Policies
Employers should have clear policies on workplace behaviour and harassment which are compliant with updated legislation and include an outline of how complaints are to be dealt with within the Company. - Regular Training for Employees
Employers should consider regular training for employees on workplace boundaries and sexual harassment. - Proper Handling of Complaints
Employers should ensure that all complaints of this nature are handled appropriately and in line with the Company's named policy.
As new legislative changes approach, we want to help you navigate your responsibilities as an employer. Our Employment Law specialists are here to provide personalised solutions, including the development of effective policies, training programmes, guidance for handling complaints, and strategies to ensure compliance with current regulations while fostering a positive workplace culture.
We understand that every business is unique and are committed to delivering solutions tailored just for you. If you would like to learn more about how we can support your organisation in addressing workplace harassment and fostering a supportive environment, please contact us at 0141 221 1919 or This email address is being protected from spambots. You need JavaScript enabled to view it.. We are here to support you through these changes effectively, and we genuinely care about your success.
