Covid-19’s impact on sexual harassment in the workplace

Sexual harassment in the workplace has taken new forms during the Covid-19 pandemic.

Sexual harassment occurs where both:

1. ‘A’ engages in unwanted/unwelcome/uninvited conduct of a sexual nature.
2. The conduct has the purpose or effect of either violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for ‘B’.

If there was no intention to cause sexual harassment then the effect on ‘B’ is assessed, which involves considering B’s perception of what took place, the context and whether it is reasonable for the conduct to have that effect.

An individual can be harassed by someone of the same or a different sex and a single incident can constitute harassment. There is no need for someone to have already made it clear that another individual’s conduct is unwanted in order for it to constitute harassment. Furthermore, sexual conduct that has been welcomed in the past can become unwanted.

Recent studies have shown that sexual harassment at work has increased and taken new forms in the virtual workplace since the Covid-19 pandemic. Many employees are currently working from home and the upturn in sexual misconduct has been closely linked to increased use of messaging Apps, video platforms, personal devices and a more casual tone that often comes from working from home.

A survey from the charity Rights of Women revealed that 45% of women said they had experienced online sexual harassment and 23% of women who had been subject to sexual harassment at work said that the misconduct had been worsened during the pandemic. Some examples of online sexual harassment include a colleague taking screenshots during a meeting, sharing them with others and making inappropriate comments; use unprofessional emojis; colleagues offering to send improper photographs, and a manager setting up a workgroup on WhatsApp and messaging employees privately. This is not an exhaustive list but is an illustration of how sexual harassment can, and is, happening at work remotely.

Not only is this deeply concerning for individuals, but this could also be very harmful to employers. Complaints of sexual harassment can be very damaging to a business, could result in costly settlements or litigation and lead to a high turnover of staff. Additionally, sexual harassment linked to a protected characteristic could lead to claims of discrimination, alongside the risk of claims such as constructive dismissal. Whilst the threat to the employer remains the same whether sexual harassment is carried out in person or virtually, misconduct is often easier to evidence when it is done remotely using screenshots, recorded messages and email threads.

Employers can be held liable for sexual harassment committed by their employees during the course of their employment and sometimes that of third parties such as contractors and customers, regardless of whether the acts were done with the employer’s knowledge or approval. Employers may be able to avoid liability if they can show they took reasonable steps to prevent harassment.
Employers need to take preventative measures to stop this behaviour from happening and to support employees who have experienced sexual harassment at work. Some ways this can be done include:

• updating company policies to reflect the new working environment and challenges employees might face. This includes having a comprehensive sexual harassment policy or anti-harassment policy and sometimes, in addition, a social media policy Maintaining a professional working environment and making sure that employees know the standard of professionalism they should meet
• regular catch-ups with employees to ensure there are safe forums to raise issues/ask questions
• offering training to employees at the outset of their employment and then at least annually to ensure that, as with all equality and diversity training, this remains at the forefront of everyone’s minds
• dealing with complaints promptly and using the correct procedures. Employers should make determinations of sexual harassment in the workplace on a case by case basis.

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