by Claire Loneragan
On 26 October 2024, an amendment to the Equality Act 2010 will be implemented. No – don’t get excited. It’s not the amendment to clarify the meaning of sex in the Act that women have been asking for. Despite the Sex Matters petition securing more than 100,000 signatures, that change has been deemed “unnecessary”.
The change we’re getting is the Worker Protection (Amendment of Equality Act 2010) Act 2023 which requires employers to take steps to prevent workers from experiencing sexual harassment at work.
Anyone can suffer sexual harassment, as the Equality and Human Rights Commission explains in their guidance and the EHRC do their best to make it make sense, but this new requirement for employers appears to demand that they redefine human nature.
So, what is sexual harassment for the purpose of this new law? Here’s the “harassment” bit from the guidance:
1.6 This type of harassment arises when a worker is subject to unwanted conduct that is related to a protected characteristic and has the purpose or the effect of:
violating the worker’s dignity, or
creating an intimidating, hostile, degrading, humiliating or offensive environment for that worker (s.26 (1))
1.7 Conduct that has one of these effects can be harassment even if the effect was not intended.
The guidance makes it clear that this can be through words, imagery, physical gestures (including facial expressions), behaviours or aggression. It’s a pretty comprehensive list.
Here’s the “sexual” component as describe by the technical guidance:
1.20 Conduct ‘of a sexual nature’ includes a wide range of behaviour, such as:
sexual comments or jokes
displaying sexually graphic pictures, posters or photographs
suggestive looks, staring or leering
propositions and sexual advances
making promises in return for sexual favours
sexual gestures
intrusive questions about a person’s private or sex life or a person discussing their own sex life
sexual posts or contact on social media
spreading sexual rumours about a person
sending sexually explicit emails or text messages
unwelcome touching, hugging, massaging or kissing
1.21 An individual can experience unwanted conduct from someone of the same or a different sex.
So a suggestive look that a worker finds intimidating even if the effect was not intended is sexual harassment and employers must proactively take steps to prevent that happening or they are in breach. Even if the perpetrator is a third party who an employee meets in the course of their work.
Interestingly, although the EHRC does give a lot of example scenarios to explain what constitutes sexual harassment, none of them are set in pubs. Don’t get me wrong, I don’t think women serving in pubs should have to put up with half-cut men leering at them over the bar. I’m just not sure that pub landlords will be able to prevent this behaviour given how spectacularly bad we are as a society at keeping women and girls safe from physical danger, never mind leering.
Instead, the EHRC valiantly gives us a hospital scenario, which is somewhat ironic in the light of the WRN Hospital Report shining a light on the extent to which hospitals can’t prevent even serious sexual assaults.
A hospital has committed to the eradication of sexual harassment in the workplace. It has updated and promoted its anti-harassment policies and procedures and management have received training on handling complaints. Staff receive diversity and inclusion training once a year, which includes training on what sexual harassment is, that it will not be tolerated and how to report it. The hospital considers it has taken reasonable steps to meet the preventative duty.
The even greater irony here, of course, is that the enthusiasm with which the NHS has embraced gender identity ideology has directly led to a sexual harassment claim. In a Darlington hospital, a trans identifying man was given access to the nurses changing rooms precisely because of the type of diversity and inclusion training rolled out all over the NHS. The sort of training that claims that sex is a spectrum and that men who say they are women are not a threat to anyone. Only a bigot would object.
That the nurses haven’t won their case already shows the weakness of the even if the effect was not intended clause when invoked by women. The nurses are bringing a case citing sexual harassment which is already covered by the Equality Act, while the new protections require employers to take reasonable steps to prevent sexual harassment of their workers.
Interestingly, because sexual harassment is not dependent on the sex of the participants, any claim that the trans identifying man allegedly harassing the nurses is in some way a woman – legal or otherwise – is irrelevant.
The outcome of the Darlington nurses’ case will therefore be hugely significant.
If the finding is in their favour – if it is deemed that being forced to undress in front of a trans identifying man is sexual harassment even if the effect was not intended – then this addition to the Equality Act will surely require all employers to provide single sex changing and toilet facilities to prevent the potential for harassment.
It’s a big if, though.
In the current climate, those nurses are just as likely to be found guilty of harassing a man because they wouldn’t take their clothes off.
