Can employers prevent sexual harassment?

From October 2024 there will be a new duty on employers to take ‘reasonable steps’ to prevent sexual harassment in the workplace and to make workplaces safer for all staff. In advance of this we thought it would be useful to give some examples of case law where employers have lost Tribunal cases due to claims of sexual harassment.

KZ v The Nags Head Reading Limited

In this case the employer was found to have failed to prevent a recurrence of sexual harassment by a third party towards one of its employees. The employee was working as a bartender on New Year’s Eve and was sexually harassed by a customer a number of times. A few days later the employee was grabbed by the same customer in front of a company director who was informed but took no action as they did not believe this to be sexual harassment. Over the next six months the employee was intimidated, insulted, stared at and was the target of sexual insults by the customer. 

The employee asked for the company to introduce a harassment policy and training for staff.
On resignation the employee made various claims in the Employment Tribunal including for sexual harassment. The Tribunal found that the employer had no understanding or awareness of employee rights and no adequate policies in place. However on being made aware of the incidents action should have been taken to prevent similar incidents in future. Instead the employer had trivialised the incidents and turned a blind eye. As a result they lost a claim for sexual harassment by failing to prevent it.

Munchkins Restaurant v Karmazyn

The four claimants in this case worked as waitresses in a restaurant in London over five years. They were all regularly subjected to sexual comments and questions about their sex lives by the 73 year old male owner of the restaurant. They were also made to wear short skirts and shown explicit images of sex toys. They attempted to complain to the owner about his behaviour but he became angry. Eventually they resigned and brought Employment Tribunal claims for sex discrimination and sexual harassment. The Tribunal upheld all the claims. The Employer appealed on the basis that sometimes the women initiated sexual banter themselves. The Employment Appeal Tribunal rejected this at appeal stating that it was a coping strategy on the part of the women. Their lack of complaint did not mean the conduct was welcome or acceptable. The women were vulnerable migrant workers with no certainty of finding new employment. 

Moonsar v Fiveways Express Transport

Several of Moonsar’s colleagues downloaded pornographic images onto their computers. Whilst they were not shared directly with her, she was exposed to them. She did not make a complaint at the time. Soon afterwards having been made redundant she brought a claim for sex discrimination arguing that the presence of the images in the room where she worked amounted to harassment. The Employment Appeal Tribunal found that the conduct of the male workers was an affront to a woman’s dignity.  The fact that the employee did not complain did ’not provide the employer with a defence’.

McDonald’s 

Over 1000 cases of sexual harassment were reported in McDonald’s in the UK as of 2019. Concerns were raised about the company failing to respond effectively. McDonalds has now signed a legally binding pledge with the Equality and Human Rights Commission (EHRC) which outlines their commitment to better protect UK workers. This includes communicating a zero-tolerance approach to sexual harassment; enhancing policies and procedures to prevent sexual harassment and improving responses to complaints; and providing anti-harassment training. 

So what can we learn from these cases:

1. Ensure that your Staff Handbook includes an Anti-Harassment and Bullying policy and that staff have training on it and sign to say they have done so.

2. Ensure Managers understand the importance of investigating claims of sexual harrassment and taking action where necessary.

3. Consider an annual or biannual survey of your staff to include questions on bullying and harassment and encourage staff to raise issues in person where necessary.In the event of an Employment Tribunal claim for sex discrimination if a Tribunal considers an employer has failed to take reasonable steps it could uplift compensation by 25%. However where an employer can show it has made a concerted effort to prevent sexual harassment by keeping evidence of steps taken as above this should provide a robust response in the event of any claims.

If you would like assistance with any HR Policies or training as above please email help@yourhrpartner.co.uk

Categorised in: Uncategorized

This post was written by SKHR