Most workers are aware that sexually harassing a colleague is not acceptable behaviour in the workplace (or for that matter anywhere else). What sexual harassment is and how manage the fall out of it - think disciplinary hearings and support for the victim - is a basic of most management training courses. Yet year on year statistics show that the problem is not being effectively managed. A poll from May 2023 found 3 in 5 women had experienced harassment at work, with this number rising to almost 2 in 3 women aged 25 to 34.
Almost seven years have passed since #MeToo came to prominence, and we continue to see significant awards being made by employment tribunals where sexual harassment in the workplace is proven. While it is the person behind the award - often an individual in the early stages of their career - and the experiences they have had to deal with that that should be the main concern, it is usually the level of compensation that attracts attention.
One such case is that of Tahir v National Grid UK Limited. The case concerned a young female trainee project supervisor who was subjected to unwanted texts and emails from her manager, a male 30 years her senior. He repeatedly asked her to remove her jumper and encroached on her physically. When the claimant complained her employer investigated, but the perpetrator remained in position. The claimant felt she was left with no option but to resign and claim sexual harassment, victimisation and constructive wrongful dismissal. The circumstances left the claimant struggling to find alternative employment, her career path having been damaged as a result of having been unable to complete her training. The employment tribunal awarded £357,000 in compensation, including £40,000 for injury to feelings and £10,000 for psychiatric injury.
While this award is unusually high, we have seen a general upward trend in awards for sex discrimination in recent years. In 2020 in our annual blog on employment tribunal award statistics we commented that awards in sex discrimination cases stand out as having the most significant change in terms of both median and average awards. That year both had more than doubled. There had also been a significant relative increase in the number claims where awards were made compared to claims in other jurisdictions - something that we commented on as possibly being related to the changing views of society brought about by #MeToo encouraging more employees to bring claims.
While these statistics do not relate exclusively to harassment claims (all types of sex discrimination are included), an overall pattern has emerged that shouldn't be ignored. In 2020 the highest award made for sex discrimination was £73,619 and the average award was £17,240. The previous year it had been £24,103 and £8,774 respectively. Although there were no statistics published in 2021, in 2022 we wrote that the trend of increasing awards for sex discrimination continued. The most recent statistics covering the 2022/23 year show the highest award for sex discrimination was £995,128 and the average £37,607. Although this type of compensation is wholly related to the facts of each case, it is clear that employment tribunals will not shy away from awarding considerable amounts of compensation when it is appropriate to do so.
October 2024 will see the introduction of the new duty on employers to prevent sexual harassment in the workplace. This is to be supported by an updated technical guidance published by the Equality and Human Rights Commission on sexual harassment and harassment at work. Employment tribunals will have the power to uplift sexual harassment compensation by up to 25% where an employer is found to have breached the new duty. While it is not yet clear exactly how that will work - for example how it will interact with the existing ability of employment tribunals to uplift compensation by 25% where there is an unreasonable failure by an employer to follow the Acas Code of Practice on Disciplinary and Grievance Procedures.
Whether the introduction of this new duty will manage to significantly reduce the instances of workplace harassment remains to be seen. What we do know however is that it will not directly impact on harassment by third parties. As originally drafted the legislation introducing the new duty to prevent harassment included provisions that would re-introduce employment liability for third party harassment, but these were removed before it was enacted. When you consider that "third parties" includes customers, clients, suppliers, patients in medical settings etc that leaves a considerable hole in protection for many workers. This may be something that is looked at again should there be a change of UK Government following the general election that is expected this year.
In the meantime, employers need to ensure they have appropriate policies and procedures in place to deal with workplace sexual harassment. Investigations should be carried out swiftly and thoroughly - the investigation in Tahir was criticised by the employment tribunal for reaching an outcome that was "perverse given the evidence". Staff should be given meaningful training that is regularly updated. In addition to dealing with individual complaints, if employers find allegations of sexual harassment are being made, they should also consider whether action needs to be taken to change the wider workplace culture.
