The Harvey Weinstein allegations and the #metoo campaign have made employers increasingly concerned about preventing sexual harassment in the workplace.

Despite the legislation that is already in place, a recent study found that 40% of hospitality workers have experienced sexual harassment. The Government is committed to tackling this problem.

Sexual harassment is form of unlawful discrimination under the Equality Act.  An employer is vicariously liable for acts of harassment committed by staff “in the course of employment” even if the employer had no knowledge of it.  See Freeths article Sexual Harassment in the Workplace – Hospitality Employers’ Liabilities for a summary of the current legal position.

New measures announced

Sexual harassment in the workplace is illegal yet workers continue to experience it.  The Government has announced a new package to tackle this issue which includes:

  • A Code of Practice is to be introduced to help employers to better understand their legal responsibilities to protect their staff. Evidence of violations of the Code will be able to be used in legal proceedings. However, critics claim that the Government has missed the opportunity to impose sanctions on employers for poor practice and say that the new Code will lack teeth.
  • Awareness raising work – the Government will run sexual harassment awareness raising work with ACAS, the Equality and Human Rights Committee and employers.
  • Employer liability for harassment by third parties – the Government will consult on a new legal duty (previously section 40 of the Equality Act) on employers to protect their staff from harassment by clients or third parties. Under current law employers are not liable for the acts of third parties.  For example, if a building contractor or customer sexually harassed one of your waitresses you would not be liable for his acts.  Having said that, if the waitress complained to you and you did not take any action, then your lack of action could potentially be an unlawful act.  You should take all employee complaints seriously and take action where appropriate. If a statutory liability is imposed on employers for the acts of third parties this will be an important issue for employers in the hotel and restaurant sector to be aware of.
  • Non-disclosure agreements – the Government will consult on the use of non-disclosure or “gagging” agreements which, once signed, prevent victims from reporting abuse. In some cases these are used unethically, with employees being unaware of their rights and protections.  The Government will look at whether these agreements require better regulation and whether more clarity is needed on the rights that an employee can sign away.