Still just a bit of banter? The TUC report on sexual harassment
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With sexual harassment still prevalent in many workplaces, what can employers do to prevent this behaviour?
We discuss a recent report published by the Trades Union Congress (TUC) in collaboration with the Everyday Sexism Project. The report, “Still just a bit of banter?”, explores the nature and extent of sexual harassment experienced by women at work and reveals some alarming statistics. We look at how employers can take steps to prevent sexual harassment in the workplace and, if an allegation is made, how to deal with it.
In January 2016 the TUC commissioned a poll on women's experiences of workplace harassment. It also carried out a survey of its members in March 2016, with a view to gathering more data to complement its findings.
The TUC states that the survey it conducted is the largest of its kind for a generation. The survey has also been cited as one of the most extensive pieces of research ever carried out in Europe on women’s experiences of sexual harassment at work.
What constitutes sexual harassment
The TUC report focuses exclusively on sexual harassment, rather than sex-based harassment or other forms of discrimination. Under the Equality Act 2010, sexual harassment is unwanted conduct of a sexual nature, which has the purpose or effect of violating someone’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
Sexual harassment can take many forms, from suggestive remarks and jokes about a colleague’s sex life, to unwelcome touching or demands for sexual favours. A single incident can amount to sexual harassment, as can a series of incidents over a period of time. It is also important to remember that conduct does not have to be directed at an individual to amount to sexual harassment. For example, an individual may be harassed where sexual comments are made about other colleagues, even if that individual is not the intended subject of those comments. Equally, the motivation of the perpetrator, who may consider their conduct or comment a compliment or “just a bit of banter”, is irrelevant.
Of those surveyed, more than half of all women (52%) and nearly two thirds of women aged 18-24 (63%) had been subjected to sexual harassment at work. The survey suggested that incidents of sexual harassment were more prevalent in more casual forms of work, such as zero-hour contracts and agency work. In most cases, the perpetrator was a male colleague, often a direct manager or someone in a position of authority. However, a significant minority of those surveyed had also been sexually harassed by customers, clients or patients.
Hearing comments of a sexual nature about other women was the most reported behaviour (35%), while unwelcome comments of a sexual nature about their body or clothes were also reported by a high number of the women surveyed (32% and 28% respectively). Although slightly less prevalent, more severe conduct was reported by a number of women. More than a quarter had experienced unwelcome touching, such as a hand on the knee or the back; one fifth had experienced unwelcome sexual advances at work; and more than one in 10 had suffered a sexual assault in the workplace.
In terms of where the women surveyed experienced sexual harassment, the vast majority reported that the harassment had taken place on work premises. However, a significant minority reported inappropriate behaviour occurring at work social events, such as the office Christmas party.
Somewhat alarmingly, the vast majority of those who experienced sexual harassment at work did not report the incident to their employer. Reasons given by those surveyed included the fear of not being taken seriously, fearing that there would be a negative impact on their career or working relationships, or simply being too embarrassed to report it. Of the minority who did report the sexual harassment, very few saw a positive outcome.
Based on the results of its survey, the TUC has put forward a number of recommendations for trade unions, the government and employers. Notably, the TUC is calling on the government to abolish employment tribunal fees, on the basis that the impetus for employers to tackle unlawful sexual harassment is reduced if there is little likelihood of a claim being brought. Further, the TUC is recommending that the government reintroduce the third-party harassment provisions of the Equality Act 2010, which were repealed in 2013. Under those provisions, employers could be held liable for harassment experienced by their employees at the hands of third parties, if they were aware of the harassment and did not take steps to prevent it reoccurring.
The report notes that many of the responses cited workplace cultures as allowing sexual harassment to go unchecked, as well as management failures to deal with complaints effectively. The report makes a number of recommendations for employers, including providing training for all levels of management, and introduction and enforcement of clear policies setting out a zero-tolerance approach to sexual harassment.
Steps for employers
The impacts of incidents of sexual harassment are well documented and employers have a duty to protect their employees from experiencing such behaviour at work. Employers may also be held vicariously liable for the unlawful actions of their employees, regardless of whether the employee’s acts were done with the employer’s knowledge or approval. Employers should therefore ensure that they take all reasonable steps to prevent sexual harassment. In particular, employers should:
- ensure that HR advisers and managers across the organisation receive training on sexual harassment, relevant law and workplace policies, and how to respond to complaints of sexual harassment;
- take steps to foster a culture in which there is a zero-tolerance approach to sexual harassment and reflect this in policies and procedures;
- ensure that appropriate mechanisms are in place to protect employees from sexual harassment by third parties, including clients, customers and suppliers;
- make all employees aware of policies relating to sexual harassment, as well as the procedure for reporting incidents;
- remind employees of the need for appropriate behaviour in advance of work social events. As the TUC report suggests, such events are very often the source of complaints of sexual harassment. Employees should be informed that such events are an extension of the workplace, that appropriate standards of behaviour are expected and that allegations of inappropriate behaviour will be dealt with formally under the organisation’s procedures;
- take allegations of sexual harassment seriously, investigate them promptly and respond sympathetically and appropriately;
- remember that not all sexual harassment is experienced by women. While women are statistically more likely to experience sexual harassment, complaints from men are on the rise. Employers should ensure that they take all complaints seriously and deal with them appropriately; and
- finally, ensure that individuals who raise allegations of sexual harassment are not subjected to any unfavourable treatment after raising their complaint. As highlighted in the TUC report, many individuals do not raise complaints out of fear that doing so may damage relationships with colleagues, or even their career. Unfavourable treatment in such circumstances could also give rise to victimisation claims, for which the employer may ultimately be liable.
Natasha Robson is an associate at Bond Dickinson.