Survey shows online sexual harassment increased during coronavirus lockdowns

Few people would argue that the Internet has shaped and transformed the 21st century.  From shopping to researching, healthcare to defence, the online world has changed almost every aspect of our lives; sometimes for the better, and occasionally for the worse. It has long been recognised that many school children are tormented by online bullies.  Home used to be a safe haven but thanks to the Internet, tormentors can pursue students at home.  And following the surge in homeworking, driven by the Coronavirus pandemic, a new study shows that those suffering from workplace sexual harassment are also now having to deal with such behaviour inside their own four walls.

A recent survey by the Rights of Women charity lays bare the extent of the online sexual harassment problem.  It shows:

  • “45% of women experiencing sexual harassment, reported experiencing the harassment remotely, i.e. sexual messages (e.g. email, texts, social media); cyber harassment (e.g. via Zoom, Teams, Slack etc); and sexual calls.
  • 42% of women experiencing sexual harassment at work have experienced some to all of the harassment online.
  • 23% of women who have experienced sexual harassment reported an increase or escalation whilst working from home, since the start of lockdown (23rd March 2020).”

Furthermore, 72% of women do not feel that their employer is doing enough to combat online sexual harassment.  A hospital worker spoke of her experience, stating:

“As the pandemic was declared, all attention was diverted in managing clinical pressures and needs as I work in a hospital. This meant an investigation was not started for months. In the meantime, I felt unprotected as there was no system in place to remove the harasser from the department whilst an investigation was pending. …There is no policy in this mammoth organisation that addresses sexual harassment.”

Deeba Syed, Senior Legal Officer, Rights of Women, said:

“These statistics echo what women have been telling us already, sexual harassment at work happens online as well as in-person. Although more women are working from home, online sexual harassment has increased and women continue to suffer sexual harassment despite the Covid-19 pandemic. Women working from home have seen their harassers take to Zoom, Microsoft Teams, social media, messages, and phone calls, to continue the torrent of abuse.”

For employers, protecting employees from online sexual harassment presents yet another challenge that must be addressed.  Failure to do so could result in expensive, stressful, and reputation damaging Employment Tribunal claims.

What are employers’ duties regarding workplace sexual harassment?

Sexual harassment is illegal under the Equality Act 2010.  Sexual harassment can arise where there is:

  • Unwanted conduct of a sexual nature that has the purpose or effect of violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for the victim.
  • Less favourable treatment – this may occur because of the victim’s rejection or submission to the conduct as described above.

Employers have a duty to prevent workplace sexual harassment not only at the workplace premises but also at work-related events such as Christmas parties and on social media.

To protect their employees and commercial reputations, employers must take ‘reasonable steps’ to prevent sexual harassment from occurring.  Doing so may also act as a defence should an employee bring a sexual harassment claim against them.  Examples of ‘reasonable steps’ include creating a well-drafted sexual harassment policy and ensuring that policy is well communicated throughout the business.  It is also important to have training in place to help managers spot signs of harassment (both in person and online) and appoint one or two people to act as a safe person to go to if an employee wants to talk about concerns regarding a colleague’s behaviour.  An alternative is to publicise details of an outside organisation that can provide a confidential person to talk to.

Talk to an Employment Solicitor regarding sexual harassment

In this age of #MeToo, employers must be vigilant in their anti-sexual harassment policies and procedures.  If you have received a complaint about online sexual harassment, speak to an experienced Employment Law Solicitor about the best way to manage the situation.  The initial steps you take in handling a sexual harassment claim can make a significant difference as to whether an Employment Tribunal claim is brought.

If you would like to discuss any of the above issues, please contact Susan Bernstein, Employment Partner on 020 8349 5480 or by email

Redundancy advice for employees and employers

In this post we look at some of the common questions both employees and employers have been asking about redundancies:

When is a dismissal of an employee by reason of redundancy?

A dismissal is taken to be a dismissal by reason of redundancy where it is wholly or mainly attributable to:

  • a closure of the employer’s business as a whole (business closure);
  • a closure of the particular workplace where the employee was employed (workplace closure); or
  • a reduction in the size of the workforce because the requirements of the business for employees to carry out work of a particular kind, or to do so in the place where the employee was employed, have ceased or diminished or are expected to cease or diminish (diminished requirements).

When is collective redundancy consultation necessary?

If an employer is proposing to make 20 or more employees redundant at one establishment within a period of 90 days or less, it must consult on its proposal with appropriate representatives, such as a recognised trade union, or if none, with representatives elected by the affected employees and it must also notify BEIS.

The consultation should begin in good time and within minimum time limits:

  • Where the employer is proposing to dismiss 100 or more employees in a 90-day period, consultation must begin at least 45 days before the first dismissal takes effect.
  • Where the employer is proposing to dismiss between 20 and 99 employees in a 90-day period, consultation must begin at least 30 days before the first dismissal takes effect.

The maximum sanction for breaching the obligations is a protective award of up to 90 days’ gross actual pay for each affected employee, which can add up to a substantial amount.

Employers must not assume that collective consultation is an adequate substitute for individual consultation with affected employees.

What procedure does an employer need to follow in individual cases?

In dismissing employees for redundancy, employers should act fairly and reasonably in order to avoid claims for unfair dismissal.  Employers should do this by:

  • following any contractual redundancy procedures, express or implied, that may apply; and
  • following a fair procedure enabling the employer to make dismissal decisions that are fair and reasonable in the circumstances. In particular, an employer will normally not act reasonably (and a dismissal will therefore be unfair) if:
  1. there is no genuine redundancy situation; or
  2. the employer fails to consult the employee individually about the proposed redundancy; or
  3. the employee is unfairly selected because the employer fails to identify a fair pool from which to select the redundant employee or fails to choose reasonable selection criteria that can be objectively measured and are not discriminatory; or
  4. the employer fails to search for and, if it is available, give the employee an opportunity to apply for suitable alternative employment within its organisation.

The obligations with regard to an individual are distinct from the employer’s collective redundancy obligations. Accordingly, if there is a collective redundancy situation, there will still be a need for individual as well as collective consultation and the two processes will often run at the same time, although some aspects of the collective consultation should take place first.

An employee with at least two years’ continuous service is entitled to a statutory redundancy payment in addition to any contractual redundancy payment or other benefits that their employer may provide.

Can an employer make an employee on furlough redundant?

An employee can be made redundant whilst on furlough.  An employee’s redundancy rights will not be affected by being on furlough but an employer cannot claim reimbursement of redundancy payments or notice pay under the CRJS.  Notice pay will be at the employee’s normal rate of remuneration, not their furlough pay. 

Whether an employee would have a potentially successful claim for unfair dismissal if they were made redundant whilst on furlough or if they were made redundant instead of being furloughed would depend on the usual test of reasonableness, depending on the particular circumstances of the case, including the size and resources of the employer. Many workplaces have closed and jobs genuinely ceased to exist in this coronavirus pandemic. The fact that there may be a possibility that an employer may need employees in similar roles sometime in the future does not mean that an employer must continue to furlough employees. However, employers would be advised to consider furloughing as an alternative to redundancy and record in writing their reasons why furloughing or continuing to furlough would not be suitable in the particular circumstances of the case.

Redundancy or reorganisation exercise?

Where the employer carries out a reorganisation so that old roles disappear and are replaced by new roles, the question of whether this reorganisation is in fact a redundancy exercise is fact sensitive. As it was put by Burton P in Kingwell and others v Elizabeth Bradley Designs Ltd EAT/0661/02  “It is not an automatic consequence of there being a business reorganisation that there is a redundancy; nor is there a need for a business reorganisation in order that there should be a redundancy situation. The two are entirely self-standing concepts. But if a business reorganisation leads to a diminution in the requirement for employees carrying out the relevant work, then that business reorganisation leads to a redundancy situation and if not, not.” Given that these decisions are fact sensitive, they can be difficult to reconcile and can often cause uncertainty for employers.

If there is a reorganisation so that an old role disappears and is replaced by a new role, and the employee applies for the new role, the employer does not need to use objective criteria to assess the employee’s ability to perform in the new role, and can rely on their usual interview process to make a subjective assessment of who is the best person for the job as long as a fair process is followed and there is no indication of bias.

Can an employee still be made redundant if she is pregnant or on maternity leave?

Selection for redundancy due to pregnancy or maternity is automatically unfair and no minimum period of employment is required for an employee to make a claim. This is also likely to amount to sex discrimination.

That said, where a woman is made redundant while pregnant or on maternity leave, but not due to the fact that she is pregnant or on maternity leave, the normal test of fairness will apply.

A woman who is made redundant while on maternity leave must be offered a suitable available vacancy with her employer or an associated employer, however inconvenient for the employer.

The second reading of the Pregnancy and Maternity (Redundancy Protection) Bill 2019-21 is scheduled to take place on 12 March 2021.  This Bill aims to simplify current redundancy protections for pregnant women and women on maternity leave by making it automatically unfair for an employer to dismiss a woman by reason of redundancy if the dismissal occurs during pregnancy or maternity leave or the six month period after the end of the pregnancy or maternity leave, unless the employer’s business is closing down in the place where the woman worked or the work she is employed to do is ceasing and she has not been offered suitable alternative employment. Similar protections would also be available for women who experience a stillbirth or miscarriage.

If you would like to discuss any of the above issues, please contact Susan Bernstein, Employment Partner on 020 8349 5480 or by email

Flexible working – Is this the future?

What is flexible working?

Flexible working includes homeworking; part-time working; job share; staggered hours; annual hours; compressed hours (working the same number of hours over a shorter period; and phased retirement. This is not an exhaustive list.

Who can apply for flexible working?

Any employee, whatever their gender, can apply for flexible working provided they have at least 26 weeks’ continuous service.

How should an employee apply for flexible working?

An employee cannot make more than one application to the same employer in 12 months.  The application should be in writing and because it must contain certain information, it is useful to use the government’s application form to be found at: https://www.gov.uk/government/publications/the-right-to-request-flexible-working-form

How should an employer deal with an application for flexible working?

An employer must deal with the application ‘in a reasonable manner’ and notify the employee of the decision within 3 months of the application or any permitted appeal unless a longer period is agreed.  There is an Acas Code of Practice on handling requests in a reasonable manner and there are specified permitted grounds for refusal of an application. However, even if an employer refuses an application on one of the specified grounds, employers should be aware that a refusal may give rise to a discrimination claim if, for example, it unjustifiably refuses a woman’s request to change her hours for childcare reasons.

What should an employer do if its employees have been working from home during the COVID-19 pandemic and now wants to make homeworking (or working partly from home and partly from the employer’s premises) a more permanent arrangement for its employees?

This is likely to constitute a variation of the contract of employment, for which the employees’ consent should be sought.  Employers will need to decide at the start what they would do if any of the employees do not agree to the change as this could make a difference to the procedure they should follow.  The employees’ contracts of employment should be updated (and possibly the employer’s staff handbook) setting out the revised terms resulting from the homeworking arrangements. Such revised terms should include not only a change in place of work but also, for example, confirmation from the employee that they are not in breach of any mortgage or tenancy agreement by working at home and that they will comply with all health and safety and data protection instructions.

Should you require any help or advice arising from any of these issues, please call or send me an email

Covid-19 vaccine – Is this the light at the end of the tunnel for employers?

As the roll-out of mass Covid-19 vaccination gets under way, it has become clear that some employees are reluctant to be vaccinated.  We answer some key questions that employers, who are keen to get staff back in the workplace (whether or not with a combination of ongoing home-working), may be asking:

Can an employer require employees to get the Covid-19 vaccine?

In short, no. The government has not legislated for the vaccine to be mandatory, so on balance it would be risky for employers to insist on vaccination, even in workplaces where there is close contact with vulnerable people, such as in hospitals and care homes. If employers were to try to force their employees to be vaccinated, it could give rise to objections on the grounds of it being an unnecessary invasion of the employee’s entitlement to individual liberty and human rights and may also have criminal implications. Forcing an employee to receive a vaccine injection under duress, could constitute an unlawful injury. A vaccination requires an individual’s informed and voluntary consent.

Can an employer discipline or dismiss an employee who refuses to have a Covid-19 vaccine?

The Acas guidance suggests that a refusal to be vaccinated could, in some situations, result in a disciplinary procedure but this would depend on whether vaccination was necessary for an employee to do their job. The example given by Acas is if staff travel to other countries for work and need vaccinations to enter a country. In most cases, however, disciplining an employee, who refuses to be vaccinated could result in the employee resigning and claiming constructive dismissal. In this situation, as well as any dismissal by the employer of an employee, who did not want to get the Covid-19 vaccine, could give rise to a potentially successful unfair dismissal claim since it is likely that an employment tribunal would find in favour of the employee rather than find it fair to impose what is effectively a medical procedure on employees.

Whereas ordinary unfair dismissal claims require the employee to have a minimum of two years’ continuous employment, there is no qualifying period of employment for an employee to bring a discrimination claim in respect of a protected characteristic under the Equality Act 2010.  For example, the employee may have a health condition that amounts to a disability, such as a serious allergy that prevents them from being vaccinated or they may be pregnant. Alternatively, the employee may be refusing to have a vaccination on religious grounds as it is understood that some vaccines use pig gelatine, which could be problematic for some religions and other philosophical beliefs, such as those held by vegans. It may also be possible that an ardent anti-vaxxer could argue that their stance was protected as a philosophical belief if it is genuinely held and worthy of respect in a democratic society. 

If employees cannot be forced to have the Covid-19 vaccine, how best can they be encouraged?

An employer has an implied duty to take reasonable care of the health and safety of its employees and to take reasonable steps to provide a safe workplace and a safe system of work. If an employee does not want to be vaccinated, the employer should listen to their concerns and be sensitive towards the individual situation.  Employers may find it useful to talk with their staff about the benefits of being vaccinated to encourage voluntary vaccination within their workforce – particularly since evidence suggests that the success of the vaccination in eradicating the spread of the virus will depend on the extent of the take-up.  For health advice about the vaccines, see https://www.nhs.uk/conditions/coronavirus-covid-19/coronavirus-vaccination/coronavirus-vaccine/

Can those employees, who will not or cannot be vaccinated, be prevented from attending the work-place?

It is understandable that employers will want to avoid the risk of Covid-19 returning to the workplace and continuing to spread amongst those who have not had the vaccination. Accordingly, an employer may decide on health and safety grounds not to permit employees, who have not been vaccinated, to attend the workplace. Such a course of action could potentially give rise to age discrimination claims on the basis that younger employees are unlikely to receive the vaccine until the last phase of immunisation or disability claims if the vaccination is not suitable for an employee due to a medical condition. An unlawful deduction from wages claim might also arise if unvaccinated employees’ pay is affected because they are not permitted to attend work. In view of these issues, employers should consider other alternatives such as working from home and/or regular testing of unvaccinated employees.

Can an employer make an offer of employment conditional upon having had a Covid-19 vaccination?

Potentially yes but the risks of discrimination claims as outlined above could still apply and since most employers anticipate low levels of recruitment for the foreseeable future, it would do little to secure widespread protection.

Do Covid-19 vaccination records need to be kept by an employer in accordance with GDPR and privacy laws?

In order to keep Covid-19 in the workplace under control, employers might want to keep a record of those who have and have not been vaccinated. This will constitute sensitive personal information and the records should comply with GDPR and privacy laws.

For further advice please get in touch with one of our North London Employment solicitors by email or call us on 020 8349 0321.