The U.K. government had set out a proposal in 2021 to strengthen legal protection against sexual harassment in the workplace, indicating that a legislation is in the pipeline.

The government has committed to introduce:

• Protection for employees harassed by third parties, such as customers and clients, including protection from racial and sexual-orientation discrimination.
• Possibly extending the time limit for bringing discrimination cases to the employment tribunal from three months to six months.
• Supporting the Equality and Human Rights Commission to set out steps employers should take to respond to sexual-harassment complaints.

This made us wonder how prevalent Sexual Harassment at Workplace is in U.K. and how they deal with such instances.

1. Statistics related to Sexual Harassment

The Trades Union Congress—a federation of trade unions in England and Wales—first reported in 2016 that more than half of women employees in the United Kingdom have experienced some form of sexual harassment at work, like indecent or suggestive remarks, requests or demands for sexual favours, and inappropriate or unwanted touches.

Women across the U.K. have experienced an upsurge in online sexual harassment while working from home during the COVID-19 pandemic. According to a Rights of Women survey from January 2021, approximately 45 percent of women surveyed in England and Wales said they have been sexually harassed on online work platforms since March 2020.

2. Is there a specific legislation to deal with Sexual Harassment at Workplace in U.K.?

UK does not have a specific legislation which addresses sexual harassment at workplace exclusively like in India.

India enacted the law called “Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act” in 2013. The objective of POSH Act is to not only protect but also to prevent any kind of sexual harassment that occur in workplace and ensure a speedy remedy for any complaints that are filed under the act. This act intends to deliver every woman of India, regardless of age or status of employment, a workplace that is safe and secure from any kind of sexual harassment.

3. How does Sexual Harassment at Workplace get addressed in U.K.?

The most prominent law in UK is the Equality Act of 2010. This law gives emphasis to workplace protection of employees and the related provisions.

A. Definition of Harassment

Section 26 of the Equality Act 2010 defines Harassment in the following manner-

(1). A person (A) harasses another (B) if—

(a). A engages in unwanted conduct related to a relevant protected characteristic, and

(b). the conduct has the purpose or effect of—

• violating B’s dignity, or
• creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2). A also harasses B if—

(a). A engages in unwanted conduct of a sexual nature, and

(b). the conduct has the purpose or effect referred to in subsection (1)(b).

(3). A also harasses B if—

(a). A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex,

(b). the conduct has the purpose or effect referred to in subsection (1)(b), and

(c). because of B’s rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

(4). In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—

(a). the perception of B;

(b). the other circumstances of the case;

(c). whether it is reasonable for the conduct to have that effect.

(5) The relevant protected characteristics are—

• Age,
• Disability,
• Gender reassignment,
• Race,
• Religion or belief,
• Sex,
• Sexual orientation.

B. Employer and employee relationship

Section 40 deals with employer and employee relationship and states that:

(1). An employer (A) must not, in relation to employment by A, harass a person (B)—

(a). who is an employee of A’s;

(b). who has applied to A for employment.

Historically, the law has imposed liability on employers for third party harassment (suppliers, customers) of their employees on a “three strike” principle:

• An employer could not be held liable for third party actions unless there had been two previous incidents.
• An employer would be liable for a third incident of third-party harassment of its employees where the employer “knew” about two previous occasions on which it had occurred.

These provisions of Section 40 of the Equality Act 2010 were repealed in 2013.

The U.K. Government has proposed to re-introduce protection against third party harassment when parliamentary time allows.

C. Vicarious Liability of Employers

Section 109 talks about Vicarious Liability of Employers. It states that:

(1). Anything done by a person (A) in the course of A’s employment must be treated as also done by the employer.

(2). Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal.

(3). It does not matter whether that thing is done with the employer’s or principal’s knowledge or approval.

(4). In proceedings against A’s employer (B) in respect of anything alleged to have been done by A in the course of A’s employment it is a defence for B to show that B took all reasonable steps to prevent A—

(a). from doing that thing, or

(b). from doing anything of that description.

The two keywords in this context are “in the course of employment” and “defences of the employer”. Both have been discussed below:

• In the course of employment

There has been confusion as to what exactly constitutes “in the course of employment”.

In Chief Constable of Lincolnshire Police v Stubbs, sexual harassment by a fellow police officer occurred when attending a pub immediately after work and at a leaving party for a colleague. These were gatherings of a number of fellow police officers, and it was found that there was a sufficient connection with the employment for the Chief Constable to be vicariously liable.

Similarly, in Livesey v Parker Merchanting, sexual harassment by a colleague at a Christmas party was found to be within the course of employment – as was the harassment that continued in the car journey on the way home from the party.

Therefore, it appears that, “in the course of employment” does not only cover instances that occur within the workplace but also may cover instances arising otherwise which may have to be determined on a case-to-case basis. This is also very similar to the definition of ‘workplace’ provided in the POSH Act, 2013.

• Defences of the employer

One of the important aspects under the above provision is that employer must take reasonable steps to prevent sexual harassment from happening. However, what may be considered as reasonable care may have to be determined on a case-to-case basis as can be seen in some of the case laws below:

In the case of Croft V Royal Mail Group (2003) EWCA Civ 1045; the employer took a number of steps to prevent the harassment of an employee who was undergoing gender reassignment to become a woman. These included agreeing to change her records, informing the workforce that she was to be addressed as a woman and stressing their harassment policy. There were further steps that could have been taken, including educating the workforce and amending the harassment policy to refer to transsexuals but an employment tribunal concluded that this would not have had any more than a marginal effect upon the workforce. Thus, the Court concluded that in this case the employer would not be liable for any acts committed by the fellow employees as he has taken all reasonable precautions to prevent any form of assault by anybody.

In the case of Al-Azzawi V Haringey Council [2001] UKEAT 158 – 00 – 0312; The complainant (Al- Azzawi) in the matter was of Iraqi Arabic origin and claimed to be the victim of racial discrimination in the workplace. The Council (Employer) argued that they had taken all reasonable steps to prevent racial discrimination. It had policies in place; those policies were not just for show; employees were (when breach was provable) disciplined under them. The Tribunal concluded that the question was not about the general prevention instead it was that of the specific measures that were to be undertaken. So, it was held that if the employer has reasonable suspicion that an employee might commit an act of sexual harassment then the reasonable steps in this case would include taking specific steps such as issuing a warning, regular supervision and notifying other managers of the possible conduct etc.

4. Other Laws

Health and Safety legislation

Under the Health and Safety at Work Act 1974, employers have a general duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees, and to protect people other than employees – including volunteers, interns and members of the public – from risks to their health and safety arising out of, or in connection with, their work.

Protection from Harassment Act, 1997

• The Protection from Harassment Act, 1997 (PHA) provides additional legal protection against harassment. The protections are not workplace specific and state that a person must not pursue a course of conduct which “amounts to harassment of another” and which “he knows or ought to know” amounts to such harassment.
• Harassment is not defined within the PHA, but it is specified that it includes verbal harassment and behaviours that cause a person alarm or distress.
• There are two enforcement options under the PHA for acting against the harasser – a claim in civil proceedings, or making a report to the police, which could lead to a criminal penalty. Employers can be held vicariously liable for acts of harassment carried out by one of their employees or agents during their employment. In this situation, an employer can be pursued for damages via a civil claim.

Conclusion

Though U.K. has Equality Act since 2010 and Protection from Harassment Act since 1997; the #MeToo movement as well as the increase in online sexual harassment during pandemic clearly showcases that a specific legislation may be helpful in addressing concerns related to Sexual Harassment at Workplace.

– Vaishali Jain, Advocate & Associate