In the UK the Worker Protection (Amendment of Equality Act 2010) Act 2023 ("the Act") has been effective since 26 October 2024 and introduces a duty requiring employers to take reasonable steps to prevent sexual harassment of their employees, including harassment by third parties.
How prevalent is sexual harassment in the consumer sector?
The British Retail Consortium's crime survey 2024 highlights the problem showing a 50% increase in levels of retail violence and abuse, to 1,300 incidents a day, including sexual harassment.
Australia's National Research Organisation for Women's Safety (ANROWS) recently carried out research which found that sexual harassment in retail is common, normalised and harmful, and is influenced by the "customer is always right" narrative.
Does sexual harassment happen in your organisation? How do you really know? Recent statistics from the TUC report show that 3 in 5 women say they have experienced harassment at work – rising to almost 2 in 3 women aged 25 to 34. It is important to remember that although the vast majority of sexual harassment cases are brought by women, men too experience sexual harassment in the consumer sector. With the numbers so high the unfortunate reality is that it is likely sexual harassment is happening in your workplace.
The legal parameters
What is sexual harassment?
The definition will vary depending on the country in question. In the UK, under the Equality Act 2010, sexual harassment occurs where A engages in unwanted conduct of a sexual nature and the conduct has the purpose or effect of either violating B's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. According to the Equality and Human Rights Commission technical guidance (the EHRC technical guidance), conduct of a sexual nature includes a wide variety of behaviour, such as sexual comments or jokes (in person and online/via social media), suggestive looks, propositions, making promises in return for sexual favours – the list goes on. An individual can experience unwanted conduct from someone of the same or a different sex.
In the UK employers can be vicariously liable for the acts of their employees during the course of their employment and employees themselves can be individually liable. The definition of workplace is interpreted very widely and can include events outside work, social gatherings and even the informal “party after the work party” in the hotel bar. Employers may be able to defend a claim on the basis that they took all reasonable steps to prevent the harassment (a seldom used defence).
What is the duty in the UK?
The Act introduces a duty on employers to take reasonable steps to prevent sexual harassment of their employees – referred to as "the preventative duty". According to the updated EHRC technical guidance, the preventative duty is an anticipatory duty designed to transform workplace cultures by requiring employers to take positive and proactive steps to prevent harassment of their employees. Compensation in claims can be increased by up to 25% when the employer is found not to have met the preventative duty.
What does the EHRC technical guidance say?
The EHRC technical guidance provides a useful overview of some of the key points employers need to be considering, including risk assessments, robust policies and detailed training. Although the guidance is applicable to the UK, the recommendations provide a useful best practice guide for global consumer sector organisations.
What is reasonable will vary from employer to employer. The law does not list specific steps an employer must take. In truth, the points set out above are the tip of the iceberg. Engaging the workforce on creating a safe environment free from poor behaviour has never been more important.
Third party harassment
The EHRC technical guidance works on the basis that the duty extends to preventing sexual harassment by third parties and there is nothing in the Act which limits the preventative duty to sexual harassment by another employee, and not by a third party.
Further reform is on the horizon in the UK with the duty to prevent sexual harassment being extended to taking "all reasonable steps" and third party protection due to come in across the board (not just in relation to sexual harassment) under the Employment Rights Bill which is working its way through Parliament.
The customer focused nature of the consumer sector means that third party harassment is a significant issue. It is crucial for employers in this sector to protect their workforce and minimise the risk of third party harassment. Preventing third party harassment can present more of a challenge than preventing employee harassment, as inevitably there is less control over third parties – be it customers, suppliers or contractors. There is also an understandable aim to keep customers happy. However, when it comes to harassment it is important for consumer sector employers to convey a clear message that sexual harassment (or indeed any harassment) of their employees will not be tolerated.
The link to human rights and sustainability
The prevention of harassment is part of a wider picture of protecting human rights. Respecting basic human rights in the workplace helps employers attract and retain the best talent.
A number of employers are actively implementing human rights frameworks as part of their wider sustainability programmes, such as the United Nations Guiding Principles on Business and Human Rights (UNGPs). Organisations report on human rights in a number of ways, from slavery and human trafficking statements, to voluntary ESG disclosures – it is crucial to see where the prevention of harassment fits into this jigsaw and how it will play out through the supply chain. Whether through regulatory compliance requirements or simply due to a drive to do the right thing – stakeholders are paying more and more attention to the protection of human rights.
How can consumer sector employers prevent sexual harassment?
Third party harassment is one of the biggest challenges which needs addressing by consumer sector employers. Risk assessments followed by affirmative action are key – have notices been displayed explaining the zero tolerance approach to harassment? Have recordings been put on telephone messages conveying the same message?
Employers in the UK have been diligently reviewing preventative measures in light of the duty, however the steps advised demonstrate good practice across the globe. Many global employers will want to take a consistent approach to preventing sexual harassment, and keeping the bar high only minimises risk.
The key is to engage the business in a cultural movement whereby dignity, trust and respect in the workplace are viewed as intrinsic values and supported by all. What will not be enough is to approach this as another compliance exercise. It is a fundamental human right for all of us to come to work and feel safe, free from harassment and unwanted behaviours.
Leaders play a crucial role in creating an inclusive and prosperous environment for their employees, customers, suppliers, shareholders, investors and communities – an environment where basic human rights are respected, where there is no place for sexual harassment and indeed no place for harassment of any sort.
Key questions for consumer sector employers include:
- Have you commissioned independent, detailed, robust risk assessments regarding sexual harassment?
- What steps have been taken to address customer based third party harassment?
- Has your workforce been educated on the legal parameters of sexual harassment in your jurisdiction?
- Have your policies and procedures been reviewed, implemented and set up for on-going monitoring? What regular external testing and assessments take place to assess understanding and provide confidence in effectiveness?
- Are your non-disclosure clauses and protocols in line with legal guidelines and your ethical strategy?
- Have external cultural and behaviour reviews taken place, linking your sustainable business strategy to the protection of human rights in the workplace?
If you have any questions or would like to discuss any of these topics and what they mean for you and your business, please get in touch with our Consumer sector and Employment experts.
