Much has been reported about harassment in the workplace, not least the Fawcett Society report in 2021 which showed at least 40% of women experience sexual harassment during their career. Progress in this area is slow as recent case law demonstrates.

What is harassment?

The Equality Act 2010 prohibits three types of harassment:

• harassment related to a protected characteristic,
• sexual harassment and
• less favourable treatment because an employee rejects or submits to unwanted conduct of a sexual nature or that is related to gender reassignment or sex.

Harassment is defined as subjecting someone to unwanted conduct which is related to a relevant protected characteristic such as sex or race. Sexual harassment is specifically where the unwanted conduct is of a sexual nature. In both cases, the conduct in question must also have the purpose or effect of violating the victim's dignity or creating an environment that is intimidating, hostile, degrading, humiliating or offensive for them.

Harassment and sexual harassment can arise in many forms including derogatory jokes or bullying and can be a one-off incident or a series of events. We consider two recent examples of where claims for harassment related to sex succeeded and what employers can do to prevent harassment taking place.

Mellor v MFG Academies Trust

Ms Mellor was a teacher at a school called the MFG Academies Trust. Following previous issues with the school providing Ms Mellor with a room in which to feed her first child, Ms Mellor advised the school in writing that she would require a private room to express breastmilk on her return from maternity leave with her second child. Ms Mellor subsequently reminded the school of this requirement when she wrote to confirm her return to work date.

Ms Mellor again requested the use of a suitable room to express in during discussions with both her manager and HR on her return from maternity leave. However, despite her efforts, no suitable room was provided. Since she had no choice but to express, she was forced to do this in the school toilets or her car. Due to the length of time it took to express and the duration of her lunch break, she also had to eat her lunch at the same time as expressing.

Ms Mellor brought various claims against the school including harassment related to her sex. Upholding Ms Mellor’s claim for harassment, the Employment Tribunal held that Ms Mellor genuinely and reasonably had no choice but to use the toilets or her car to express and that such conduct was related to her sex. This was unwanted conduct that violated her dignity and created a degrading and humiliating environment for her. The need for privacy due to the intimate nature of the activity, the risk of exposure of intimate body parts in public and the length of time taken to express were inherently related to Ms Mellor being a woman.

Mr A Finn v The British Bung Manufacturing Company Limited and Mr J King

It is worth remembering that harassment claims are not just brought by women and that the protected characteristic of sex applies to both men and women.

Mr Finn was employed as an electrician by The British Bung Manufacturing Company. He was dismissed for misconduct following a dispute with Mr King, his supervisor and subsequent production of a statement on police notepaper at an investigatory meeting. Following his dismissal, Mr Finn brought various claims against his employer and claims against Mr King, including a claim for harassment related to sex on the basis he alleged that Mr King had called him an “old bald c***” on two separate occasions.

The Employment Tribunal ruled that the reference to Mr Finn being a “bald c***” was conduct that was unwanted and which had the purpose of violating his dignity and created an intimidating, hostile, degrading, humiliating, and offensive environment. As no direct reference was made to his sex, the tribunal had to analyse the precise words used and the context in which they were said, making a finding that there was a suffcient connection to the word ‘bald’ and the fact that Mr Finn was a man. On that basis, the conduct related to the protected characteristic of sex.

What can employers do to prevent harassment in the workplace?

Recent case law suggests that acts of harassment within the workplace are more in the spotlight than ever before. Indeed, following a consultation in 2019, the government last year confirmed its intention to introduce a new duty for employers to prevent sexual harassment in the workplace "as soon as" parliamentary time allows. In addition, it will discuss scope for further strategic enforcement action by the Equality and Human Rights Commission (EHRC) and support the EHRC to develop a new statutory code of practice. Although there is still no definite timescale for this action, it is clearly on the government’s radar.

It is therefore imperative that employers take reasonable steps to prevent harassment and sexual harassment from taking place. These include:

• providing regular training on bullying, harassment and discrimination to the whole workforce in order to reduce the risk of issues arising and to protect employee wellbeing;
• implementing bullying and harassment policies to set out what standards and behaviours are expected and how individuals can raise concerns if acts of potential harassment arise. It is important that such policies are reviewed and kept up to date and that regular reminders of the policies are sent out to the workforce;
• considering other initiatives such as carrying out a harassment risk assessment and/or surveying staff to identify particular trouble areas.