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Sexual harassment by third parties in the workplace

Napthens - February 19th 2018

Following the recent waves of sexual harassment allegations in both Hollywood and Westminster, awareness has been raised surrounding allegations of sexual harassment within the workplace. Last month the Fawcett Society issued a review with a focus on sex discrimination, notably looking at sexual harassment from third parties within the workplace.

What is Sexual Harassment?

Defined by the Equality Act 2010 (EA) as ‘Unwanted conduct of a sexual nature, which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant or of violating the complainants dignity’. Sexual harassment can take many shapes and forms and both men and women can become a victim within the workplace.

Sexual Harassment in the Workplace

Sexual harassment in the workplace appears to be wide spread with the TUC conducting a survey in 2016 which found that over half (52%) of the women polled had been the subject of sexual harassment. Shockingly, 20% of those polled reported that the perpetrator was their direct manager or a person with direct authority over them. Therefore, it’s perhaps no surprise that 80% of people didn’t report incidents of harassment to their employers. Worryingly, only 7% of those who did report it said that it was dealt with satisfactorily.

Sexual Harassment by a Third Party

Under the current legislation employees have very little protection where they are subject to sexual harassment from a third party. In 2013 the coalition government repealed Section 40 of the EA which provided protection against third party harassment. Under Section 40, employers were found to be responsible for third party harassment if they knew of two previous incidents of sexual harassment and they failed to take reasonable steps to prevent it.

The Fawcett Review has stressed the need for S40 to be reintroduced. It has also emphasised the need for this to be updated to require only one previous incident before the employer can be held responsible. In addition to this, the Review acknowledges that in some instances it will be difficult for employer to prevent third party harassment and therefore suggests that a provision will need to be made, in order to limit an employer’s liability in such circumstances.

What Should You Do?

Best practice would be to ensure that you have stringent policies in place, which ensure that any allegation of sexual harassment is dealt with effectively and appropriately. In particular, where an allegation is made by an employee of sexual harassment by a third party, this should be investigated and active steps should be taken to try and prevent it happening again in the future.

Should you need advice on how to handle sexual harassment in the work place or would like assistance with drafting/amending policies, then please don’t hesitate to contact a member of the team.