It is almost a year since the Worker Protection Act 2023 (WPA) introduced the proactive legal duty for employers to take reasonable steps to prevent sexual harassment at work. Lidl GB have become the latest employer to hit the headlines having signed a legally binding agreement with the Equality and Human Rights Commission (EHRC) to implement robust measures to prevent sexual harassment in their workplace. Lidl are the latest high-profile employer to do this joining McDonalds, IKEA and Sainsburys.
This agreement stems from an Employment Tribunal case Hunter v Lidl Great Britain Ltd where Lidl was held vicariously liable for Hunter’s sexual harassment by her colleagues. Lidl were unable to show they had taken all reasonable steps to prevent sexual harassment, so could not use the statutory defence to a sexual harassment claim. Hunter had worked at Lidl as a teenager and the Deputy Manager allegedly made sexual advances including telling her she was “distracting in her uniform” and touching her. When she complained Hunter was told that “she should take it as a compliment”.
The tribunal was critical of the fact that Hunter’s complaints were not addressed. Lidl had a policy in place, but there was no evidence that managers and staff had received any training, and managers were not aware of the policy. That lack of training led to an environment in which language and behaviour with sexual overtones reflected the culture at the store and was allowed to go unchecked. The Tribunal noted that Lidl had not complied with either the ECHR code or their own Anti-harassment policy. Interestingly, the Tribunal found that the Deputy Manager had not intended to cause offence but was just reflecting the culture of the store. A reminder that workplace banter is not acceptable, and employers need to make sure that behaviour is not allowed to continue simply because it has become the norm. Hunter eventually resigned and was awarded £50,885 for harassment, constructive unfair dismissal and an equal pay complaint.
Following the judgment Lidl took several steps to address the concerns of the Tribunal and have now also agreed to comply with the following expert recommendations made by the EHRC:
- Conduct a staff survey relating to sexual harassment within the workplace and assess if additional preventative steps are necessary;
- Develop a system to monitor and analyse informal complaints of sexual harassment to identify ongoing risks and whether additional preventative steps are required;
- Monitor the effectiveness of complaint handling for new formal complaints of sexual harassment;
- Review a sample of sexual harassment complaints from 2023 and 2024 to assess any trends and risks;
- Arrange meetings with its existing DE&I groups to discuss risks of sexual harassment, and any additional preventative steps which could be taken;
- Continue to monitor and review its sexual harassment risk assessment;
- Further review internal harassment policies and training content, including its relationships at work guidance.
These steps have been specifically recommended by the EHRC, and as such we would suggest that they reflect best practice when it comes to what employers should be doing to prevent sexual harassment. It is important to remember compliance is not just a tick-box exercise, is not static but something that should be addressed and continually reviewed.
This case highlights the importance of employers taking their obligations seriously and the tough enforcement action that EHRC are prepared to take to ensure compliance.
It is a reminder that simply having a policy in place is insufficient and an employer must take proactive steps to regularly review risks and reporting practices.
The EHRC were also critical of Lidl’s failure to train staff and the case emphasises how essential regular practical training is which must cover how to spot sexual harassment, how to challenge it and how to raise concerns.
Reducing your risk
- The first step is to conduct a sexual harassment risk assessment to identify your particular area of risk. Each workplace will have its own risk profile, and a thorough risk assessment should be the foundation for any preventative strategy.
- Make sure that any culture of banter is addressed and consider the impact of third parties such as customers.
- Review your anti-harassment and sexual harassment policies. You should also review any policies that address appropriate behaviours, for example your WhatsApp or social media policies.
- Conduct staff surveys to identify what your culture is and make an action plan.
- Have a clear reporting process. Make sure managers know what to do when they receive a complaint.
- Anti-harassment and sexual harassment training for your managers and staff is essential. It should be regularly refreshed, you should keep records of attendance and monitor the effectiveness of your training.
