Dealing with Sex Discrimination and Sexual Harassment issues at work: a guide for Employers

Posted Monday 13th February 2023

Following a string of work-based sex discrimination and sexual harassment headlines in recent years, the Welsh Rugby Union (WRU) has become the latest to be accused of a toxic work culture, following the release of a BBC documentary detailing allegations of sexually discriminatory behaviour in the workplace.

Two former female employees of the WRU have made their allegations public, stating that their treatment by male colleagues at the WRU led to suicidal thoughts and their subsequent resignations. Both women reached settlements with the WRU. The individual accused by one of the former female employees remains in their position at the WRU, following an investigation led by an external lawyer, who failed to interview the accused. Such inexcusable failings on the part of the WRU should serve as a stark reminder to employers of their duty of care towards employees.

Sex is one of the nine protected characteristics under the Equality Act 2010. Sex discrimination can be either direct or indirect. Direct discrimination occurs where, because of their sex, a person is treated less favourably than others of a different sex. Sex discrimination can also be indirect, whereby there is a provision, criterion or practice implemented by an employer which although applies to all, it puts persons of a certain sex at a particular disadvantage that cannot be justified. This  means that the discrimination does not need to be deliberate for it to be considered unlawful.

In relation to sexual harassment, the Equality Act 2010 states that it is unlawful for an employer to subject a job applicant or an employee to:

• harassment related to their sex;
• sexual harassment; or
• less favourable treatment because they reject or submit to harassment.

Sexual harassment in the workplace could be a one-off act or a series of acts whereby:

• someone engages in unwanted conduct of a sexual nature; and
• that conduct has the purpose or effect of violating someone else’s dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment for that person.

On 8 February 2023, McDonald’s announced that it had signed a Section 23 Agreement with the Equality and Human Rights Commission (EHCR), the UK’s equalities watchdog, committing McDonald’s to improve its handling of sexual harassment claims in the UK following a wave of complaints from staff. The legally binding agreement includes measures such as communicating a zero-tolerance approach to sexual harassment, enhancing policies and procedures to prevent sexual harassment in the workplace and introducing mandatory anti-harassment training.

A Section 23 Agreement may be more appropriate for large corporations such as McDonald’s and Sainsbury’s. However, to avoid sexual harassment and discrimination in the workplace, employers should consider:

• implementing an effective anti-harassment policy;
• raising awareness of the issues surrounding sex discrimination and sexual harassment to its employees;
• assessing its working practices;
• ensuring reporting any acts of discrimination is an easy and straightforward process; and
• providing regular training to all staff on the company’s policies and procedures.

If employers are faced with sex discrimination or sexual harassment claims, they should be vigilant to take any such complaints very seriously, no matter how small the matter may seem.

Employers should:

• establish the facts by carrying out a thorough investigation with those involved
• follow established procedures fairly and sensitively
• handle the complaint without unreasonable delay
• provide all affected employees with support during this time, this could be via an Employee Assistance Programme or ensuring that they know they can speak confidentially to a member of the HR team or a manager at any point during the process

Should a sexual harassment or discrimination claim reach an employment tribunal, the tribunal will expect the employer to have taken all reasonable and necessary steps to have firstly avoided the sexual harassment, while also following a fair procedure after the complaint has been raised. If an employer is found to have not done either of these things, the employment tribunal may find the employer vicariously liable for the actions of the employee that discriminated against or harassed another. The responsibility of the employer to prevent sex discrimination and sexual harassment in the workplace and effectively handling any claims of such can therefore not be overstated enough, not least because the compensation award for such claims is uncapped in the employment tribunal.

We regularly assist employers to prepare effective anti-harassment and discrimination policies and provide training on the same to protect their members of staff and their business. Please contact a member of the team to discuss how we can help.

---

This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.

---

Share this article