Sexual harassment in the workplace, against employees and third parties, has been an issue for some time, with countless cases being reported in the media; cases that have involved some high-profile individuals.
Most recently, there there are the very serious allegations against the late Harrods owner, Mohamed Al-Fayed. Beyond the famous, there are a multitude of instances elsewhere, including within the optical profession.
Back in February 2018, The Bolton News reported the case of an optometrist who was suspended by the General Optical Council (GOC) for 12 months after he told the woman she had a ‘cracking figure’ and found ‘athletic bodies on women very attractive’.
After she reported him, the optometrist apparently looked up her address on confidential files and sent her a hand-written letter with a £1,000 bribe and a free pair of glasses to not report the case.
Furthermore, the optometrist’s brother, who then owned the practice, was jailed in September 2016 after admitting to six counts of voyeurism for secretly filming female customers at the business.
In 2023, the GOC published its Registrant Workforce and Perceptions Survey, which highlighted the scale of bullying, harassment and discrimination experienced by optometrists, dispensing opticians and contact lens opticians.
In the survey, 41% of respondents reported experiencing harassment, bullying or abuse at work in the preceding 12 months from patients and service users, their relatives, or other members of the public.
Additionally, 18% reported being subjected to such treatment from managers, while 16% reported similar experiences from colleagues. The data did not make specific mention of sexual harassment, but it is distinctly possible that it will have featured.
Of course, many employers will have a tried and tested approach to dealing with workplace sexual harassment. This is likely to involve staff training, the maintenance of up-to-date policy documentation, and an approach to ensuring issues are dealt with robustly when they arise.
However, regardless of employer actions, since October 26, they have a new duty under the Worker Protection (Amendment of Equality Act 2010) Act 2023 to take ‘reasonable steps’ to prevent the sexual harassment of staff at work.
Those that fail to take such steps risk a compensation uplift of up to 25% in the event of a successful claim against them. As an Equality and Human Rights Commission (EHRC) spokesperson told Optician: ‘Evidence shows that workplace sexual harassment remains widespread, often goes unreported and is inadequately addressed by employers.’
The spokesperson added that the EHRC considers the Act ‘an important part of protecting employees in the workplace’ because it places ‘a proactive duty on employers to take all reasonable steps to prevent sexual harassment in the workplace.’
In anticipation of the new duty, employers will be wondering whether their existing approach to the management of workplace sexual harassment will be sufficient to comply. The answer is that in many cases, employers need to do more.
However, determining what constitutes ‘reasonable steps’ for an employer will depend on individual circumstances.
For Gareth Edwards, a partner in the employment team at VWV, factors such as the employer’s size, the sector in which it operates, and the way it identifies and manages risks are all likely to be material.
As he says: ‘To effectively prepare for the new duty, employers should reflect on their current sexual harassment strategy and make improvements where necessary.’
He highly recommends making contemporaneous records to explain an employer’s strategy and approach over time as ‘this ensures that appropriate evidence can be presented to a tribunal in the event of a future claim.’
There is help from the EHRC, which said on its website: ‘To support employers, we have updated our technical guidance on sexual harassment to reflect the new duty.’
New mandatory duty
In overview, Edwards says the Act introduces a mandatory duty on employers to take ‘reasonable steps’ to prevent sexual harassment of employees in the course of their employment.
‘The mandatory duty is a much broader duty than any other obligation existing under current anti-harassment law; the question of what will constitute “reasonable steps” for any individual employer merits careful consideration and will depend on factors such as the type of organisation and the harassment risks present at that workplace,’ Edwards says.
Changing defence
Employers might be aware that under existing law, there is a potential defence available to employers facing harassment claims, where they can show they took ‘all reasonable steps’ to prevent the employee from carrying out the harassment.
On this, Edwards comments: ‘Where the reasonable steps defence succeeds, the employer will escape liability, leaving the harasser potentially personally liable if they have been named as a respondent in the litigation.’
He adds, though: ‘The new mandatory duty is different from the existing reasonable steps defence. The reasonable steps defence applies in a much narrower context, namely in demonstrating that an employer took necessary action to prevent a particular employee from displaying a particular behaviour.’
He says, in contrast, the mandatory duty will apply on an organisation-wide basis to all employees and is likely to call into question the employer’s culture and approach more generally.
Third-party harassment
Employers should note that although explicit third-party harassment provisions were removed from the Act, the new mandatory duty may still encompass a requirement to manage the risk of third-party harassment where relevant.
Again, Edwards warns that the requirements of any given employer will depend on the particular risk of staff being exposed to third-party harassment at work.
As a result, he says that employers should ‘consider the risk of third-party harassment as part of the general requirement to comply with the mandatory duty.’
And the risks, as noted earlier, are very real in the profession. Indeed, a look on the GOC’s past hearings list reveals other cases of interest.
In March 2024, a male optometrist faced a number of allegations in relation to comments made to female patients and his physical proximity to women. It was found that his fitness to practise was impaired by reason of misconduct and he was erased from the register.
Similarly, in July 2024, a male optometrist sent disparaging messages about female patients. He admitted his actions and it was also found that his fitness to practise was impaired by reason of misconduct. He too was erased from the register.
Enforcement
As to how the new mandatory duty will be enforced, either the employment tribunal may apply a compensation uplift of up to 25% for breach of the mandatory duty in successful sexual harassment claims, or EHRC will be able to take direct enforcement action against employers who breach the mandatory duty.
On this, the EHRC spokesperson said: ‘We will take enforcement action where necessary, including against companies who have failed to take reasonable steps to protect their employees from sexual harassment.’
In terms of the compensation uplift, to pursue an employer for breach of the mandatory duty, an employee will need to bring a successful harassment claim under the Equality Act. If that claim succeeds, Edwards says a tribunal may apply the compensation uplift at an appropriate percentage to reflect the extent to which the employer has breached the mandatory duty.
As he cautions: ‘A tribunal may be likely to apply the compensation uplift precisely because, for the claim to succeed in the first place, the employer will either have failed to invoke the reasonable steps defence or will have been unsuccessful in doing so.
If an employer has failed in the reasonable steps defence, it is likely to also fail to show that it has complied with the mandatory duty.’
In real terms, the practical impact of the mandatory duty is likely to be a compensation uplift of up to 25% in almost any successful sexual harassment claim. Given that sexual harassment is a claim for which a tribunal has the power to award unlimited compensation, a failure to comply with the mandatory duty could prove very costly.
Some of the awards have been huge. One case in 2015 saw a claimant awarded £3.2m and another, in 2023, £360,000. The new law could make those awards 25% more costly for employers.
In the event of a breach, the EHRC can issue notices to employers in relation to their unlawful acts. A notice would require the employer to prepare a draft action plan setting out how it will remedy its breach. The EHRC may approve the plan or require improvements to be made to it. The EHRC rarely takes enforcement action against individual employers but may do so in the event of serious breaches of equality law.
Summary
Employers need to take notice and recognise their new duty. It is going to be enforced and employers who ignore the law could find themselves paying expensive awards made against them.
