January 8, 2025

The TUC's November 2024 report on Black women's experiences of racialised sexual harassment in the workplace has shed light on an issue that underscores the importance of proactive employer action. The report highlights the pervasive nature of harassment in the workplace and emphasises the intersectionality of protected characteristics, particularly race and gender. The findings prompt businesses to assess their harassment prevention measures for all forms of harassment.

Key takeaways from the TUC report

The TUC report reveals that Black women often face harassment that combines elements of racism and sexism. Based on research from Queen Mary University of London and the University of Surrey, the report found:

• 65% of respondents had experienced sexual harassment at work, and over a third had encountered negative, gender-based attitudes;
• 51% said their experiences of sexual harassment negatively impacted their mental health;
• 73% of respondents had been bullied or harassed;
• 53% reported being subjected to racist remarks or having racist comments made in their presence; and
• 58% of Black women who experienced sexual harassment did not report it, with 38% expressing doubts that their reports would be taken seriously.

The report's findings highlight the urgent need for targeted interventions and policies that address the intersectionality of race and gender in harassment experiences.

Actions for employers and holistic prevention strategies

The current law, as amended in October 2024

As a reminder, the law provides that employers are vicariously liable for sexual harassment committed by their staff in the course of employment. However, if an employer can meet the very high threshold of showing that it took "all reasonable steps" to prevent harassment, then it can defend the claim and avoid liability entirely. Tribunals have been reluctant in practice to accept that employers have satisfied the "all reasonable steps" defence.

The law in this area progressed in October 2024 when a new proactive duty to take "reasonable steps" to prevent sexual harassment was introduced under the Worker Protection Act* (the WPA). If a successful claim is brought, an employment tribunal can increase compensation by up to 25%.

The Employment Rights Bill

The Employment Rights Bill (the Bill) will add a proactive duty on employers to take "all reasonable steps" to prevent sexual harassment in the workplace. The Bill will also make employers liable for harassment of employees by third parties. This covers harassment on the grounds of any relevant protected characteristic, not just sexual harassment. Please see our previous blog here for an overview of the current position compared to the new additions under the Bill.

Actions for employers

In a previous blog post, available here, we set out five immediate steps employers should take to prevent sexual harassment. Notably, it is imperative for employers to carry out an assessment of the risk of third-party harassment on employees and take steps to mitigate those risks.

Many organisations focus heavily on sexual harassment prevention (understandably to comply with the duty to prevent sexual harassment under the WPA) - implementing policies, training and risk assessments - without applying equivalent measures to other forms of harassment, such as racial or intersectional harassment. However, sexual harassment can present unique complexities not always mirrored in other forms of harassment. Unlike behaviours such as making discriminatory comments or gestures, which are universally inappropriate, sexual harassment often intersects with broader societal norms around consent and private versus professional boundaries. This nuanced difference does not diminish the severity of any form of harassment but highlights why specific rules and preventative measures may sometimes focus on sexual harassment as it can be harder to set boundaries and identify when these have been overstepped.

That said, an imbalance in preventative measures based on different protected characteristics can create significant vulnerabilities for employers. If an organisation appears to prioritise preventing one type of harassment over others, it may struggle to argue convincingly that "all reasonable steps" (as required by the Bill) have been taken to prevent harassment across the board. To address this, it is recommended employers adopt an equally rigorous approach to all forms of harassment by:

• conducting comprehensive risk assessments for all forms of harassment;
• delivering inclusive training programmes;
• regularly reviewing and updating policies; and
• implementing ethnicity monitoring systems.

Intersectionality in practice: the role of toolkits and guidance

The Fawcett Society's toolkit on preventing sexual harassment, which includes a focus on intersectionality, highlights the need for nuanced approaches that consider how overlapping identities can shape experiences of harassment.

The TUC also recommends that trade unions play an active role by:

• creating dedicated spaces for Black women to share their experiences of racialised sexual harassment; and
• critically evaluating their internal cultures, policies and procedures to ensure they adequately address racialised and gendered harassment.

Moving forward

The insights from the TUC report and Fawcett Society's toolkit highlight the need for a holistic and intersectional approach to harassment prevention. The report calls for employers to provide targeted training on both racialised and gendered harassment. Additionally, the TUC recommends that the government extend legal protections by enacting dual discrimination provisions to better address the complex realities of intersectional harassment.

By ensuring consistency in preventative measures and addressing the unique challenges posed by intersectionality, employers can not only strengthen their statutory defences but also foster a truly inclusive workplace culture.

The full title is the Worker Protection (Amendment of Equality Act 2010) Act 2023.