Knowledge

According to the UK Equality and Human Rights Commission (the "EHRC"), sexual harassment unfortunately remains a significant issue which undermines equality in the workplace; no workplace is immune and the lack of reported cases does not mean that employees have not experienced some form of sexual harassment. 

Put simply, sexual harassment refers to conduct which has the effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. 

Sexual harassment in the workplace is prohibited in the UK under the Equality Act 2010. Similarly, existing anti-discrimination legislation in Guernsey and Jersey prohibit harassment in the workplace when an employee is subjected to unwanted conduct related to a Protected Characteristic that violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for the employee. However, with effect from 26 October 2024, all UK employers are now required to proactively prevent sexual harassment in the workplace and there is no requirement for a Protected Characteristic before such protection comes into force. This is known as a preventative duty and was introduced with the passing of the Worker Protection (Amendment of Equality Act 2010) Act 2023. 

UK legislation does not directly apply in the Channel Islands ("CI") and, as a result, there is currently no legal duty on a CI employer to proactively prevent sexual harassment. That being said, CI employers, just like their UK counterparts, are subject to the same risks which may arise due to the poor management of incidents of sexual harassment, including:

• disruptions to business operations/loss of productivity;
• legal liability (monetary awards and/or criminal prosecution);
• reputational damage; and
• destabilisation of the workforce as a whole.

It is also important to note that victims of sexual harassment may experience considerable psychological and physical trauma which, in turn, can have a significant impact on them both personally and professionally.  If not dealt with appropriately, a victim of sexual harassment may experience a range of mental health disorders including acute stress, anxiety, depression and post-traumatic stress disorder (any impairments which fall within the definition of 'disability' under the applicable Guernsey or Jersey anti-discrimination law could give rise to an independent disability discrimination claim and/or a personal injury claim) and/or a victim may feel that they have no other option but to leave their employment (which may also give rise to a constructive unfair dismissal claim).

In light of the preventative duty, the EHRC introduced amendments to its technical guidance on sexual harassment and harassment at work and published an eight-step employer guide setting out what employers can do to prevent and deal with sexual harassment in the workplace (the "EHRC Guide").

In summary, the EHRC Guide sets out the following pertinent steps:

Step 1: Developing an effective anti-harassment policy 

A comprehensive anti-harassment policy should be developed and implemented which ensures that all employees are aware of their responsibilities and rights under the law.

Step 2: Engaging with employees

Employers should take steps to ensure that employees understand the scope, purpose and import of the anti-harassment policy.

Step 3: Conducting a workplace assessment 

Employers must consider factors that might increase the likelihood of sexual harassment and the steps that can be taken in mitigation. 

Step 4: Developing a reporting system

Employers should implement a reporting system (such as an online or independent telephone-based service) that allows employees to raise an issue.

Step 5: Training

All employees, including managers and staff, should receive periodic training on the company's anti-harassment policy and procedures.

Step 6: Action plan to deal with complaints 

There should be a clear plan of action for dealing with sexual harassment complaints.

Step 7: Dealing with harassment by third parties

Employers should take steps to prevent harassment by a third party, such as a customer, client, patient or supplier.

Step 8: Continuous monitoring 

The effectiveness of the employer's sexual harassment policy and procedure must be evaluated at regular intervals.

A copy of the EHRC Guide can be accessed here.

It would be valuable for CI employers to consider the EHRC Guide and establish whether their own policies are aligned with what may be best practice in dealing with sexual harassment in the workplace.

If you would like any further information or guidance, please get in touch with your usual Bedell Cristin contact or one of the contacts listed.