Project D – Sexual Harassment in the workplace
You may have seen the headlines recently that the Employment Tribunal has awarded a former donut decorator over £30,000 in compensation in relation to allegations of sexual harassment in the workplace carried out by her colleague.
Sexual harassment is defined in the Equality Act 2010 as unwanted physical, verbal or non-verbal conduct of a sexual nature, that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
When considering the claim of sexual harassment in Merriman v ‘Project D’ (trading name), the judgment helpfully summarised the facts alongside the legal definition of harassment and three main strands: was the conduct of a sexual nature; was it unwanted; and did it violate the Claimant’s dignity?
The findings are as set out below:
Was the conduct of a sexual nature?
It was found that the Claimant’s colleague bear hugged her, backed her into a corner and grabbed her bottom. The Tribunal held that given the fact that the conduct involved touching the Claimant’s bottom, it was satisfied it was conduct of a sexual nature.
Was the conduct unwanted?
The Tribunal then moved on to consider whether the conduct was unwanted. The Tribunal held that whether the Claimant had engaged in ‘flirty banter’ or not, there was nothing that could have possibly invited her colleague to grab her in the way he did. The Tribunal held they were more than satisfied that the conduct was not invited or encouraged and that it was entirely unwanted.
Did the conduct violate the Claimants dignity?
The Tribunal then considered whether the conduct had the effect or purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. The Claimant’s evidence was that it made her feel intimidated and uncomfortable.
The Tribunal had no hesitation in concluding that the definition of sexual harassment was met and Project D were ordered to pay over £30,000 in compensation to the Claimant.
Upcoming changes in sexual harassment laws
As you may be aware from previous articles or attendance at our HR Forums there are changes to sexual harassment laws coming later this year. The Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into effect from 26 October 2024. It will:
- Introduce a mandatory duty on employers to take reasonable steps to prevent sexual harassment of their employees in the workplace
- Give employment tribunals the power to uplift sexual harassment compensation by up to 25% where an employer is found to have breached the new duty to prevent sexual harassment (much like the power to uplift for failing to follow the ACAS Code on disciplinary and grievances)
The Project D case above was of course heard prior to the new law coming into place, and there is no commentary or consideration in the judgment about the steps that Project D did or did not take to prevent the sexual harassment from occurring. It’s important to note that the case was brought against the employer and not the individual harasser – and in cases like these, unless the employer can show they have done what is needed and required by them, it is highly likely there would be an uplift in damages – which in this case would have been significant.
What qualifies as reasonable steps?
The Equality and Human Rights Commission is consulting on proposed changes to its technical guidance on preventing sexual harassment in the workplace until 06 August 2024. After this date, it is anticipated the updated guidance will be made available to employers ahead of the legislation coming into force, to assist and guide employers with the practical steps they can take in the circumstances.
It is anticipated that ‘reasonable steps’ will depend on employer’s size, resources and the particular industry it is in.
Some suggested examples of ‘reasonable steps’ to consider ahead of the guidance being released are:
- Clear and regularly updated policy specifically dealing with sexual harassment
- Mandatory training for all staff on what amounts to sexual harassment, standards of behaviour expected in the workplace, and how to raise a complaint
- Additional training for managers on how to deal with any complaints they may receive
- Zero tolerance policy, openly supported by management
- Encourage reporting by providing different methods of doing so – harassment hotline for example
- Monitor repeat offenders and particular risk areas – hospitality, young / lone workers
- Workplace champions – like first aid / mental health champions for those who experience or witness harassment
We will continue to monitor and share updates on the technical guidance, but it is now a good time to start putting measures in place and taking active steps to implement some of the above suggestions now, ahead of the October 2024 changes. This will help ensure you, your managers, supervisors and employees are ready for the changes, but also show that you are doing as much as possible to help prevent sexual harassment in the workplace, and evidence that you have taken sufficient reasonable steps to prevent this from occurring.
If you have any queries regarding preventing sexual harassment in your workplace, updating your policies and procedures or would like to arrange training for your workforce, our friendly and professional team are here to help. Explore how our team can support your business on our website, speak with us on 01246 555 111, or contact one of the team directly below:
Amy Hallam
Head of Employment
t: 0114 349 6989
e: amy.hallam@brmlaw.co.uk
Ellie Leatherday
Associate
t: 01246 564002
e: ellie.leatherday@brmlaw.co.uk
Jade Taylor
Trainee Solicitor
t: 01246 560587
e: jade.taylor@brmlaw.co.uk
