Sexual harassment in the workplace

From 26th October 2024 a significant new legal obligation for employers will come into effect, requiring you to take reasonable steps to prevent sexual harassment in the workplace. In this blog we look at what you need to do to prepare.
The new duty to prevent sexual harassment: how is the law changing?
The new law shifts from reactive to proactive approaches when dealing with sexual harassment. Instead of focusing solely on addressing incidents after they occur, you will now need to take preventative actions. This could involve implementing measures like comprehensive workplace training, regular risk assessments, and establishing clear policies to identify and mitigate potential risks of harassment before they escalate.
Under current law, sexual harassment is already prohibited and employers are liable for harassment committed by their workers in the course of employment. They can avoid liability if they can show they took all reasonable steps to prevent any harassment occurring. This gives employers an incentive to take action to prevent harassment in the workplace, but the new law goes further than this and creates a positive legal obligation for employers to try to stop sexual harassment from happening in the first place by taking reasonable steps to prevent it.
The new duty extends to sexual harassment occurring in the course of employment, so while it covers sexual harassment within the workplace it also covers harassment occurring at work-related events such as conferences or drinks. The duty therefore requires employers to anticipate situations where workers may be exposed to sexual harassment and take action in advance to prevent it.
Employers which fail to comply with the new duty face both financial and reputational risks. If an employee succeeds with an employment tribunal claim for sexual harassment, and the employer is found to have breached its duty to take reasonable steps to avoid the sexual harassment, the tribunal will be able to uplift compensation for harassment by up to 25%. As there is no cap to the compensation which can be awarded for discriminatory harassment, this uplift could be very significant. From a reputational perspective, the Equality and Human Rights Commission (EHRC) also has the power to enforce the duty and can conduct its own investigations.
What are reasonable steps and what can employers do to demonstrate compliance?
1. Training and awareness
The need to provide training in this area will be key, however, it needs to be effective if it is going to count as one of the reasonable steps. Recent tribunal caselaw indicates that training which is simply a tick-box exercise or which is old or no longer relevant, will not be enough.
When choosing training, you should think about designing the training for your specific sector and working practices. For example, if your organisation is customer facing, office or home based this will inform the focus of your training. You should also design the training for different audiences within the organisation. For example, senior leadership and managers should receive training about how to role model appropriate behaviours, how to spot sexual harassment and what to do if they receive a report of harassment. Staff should understand what behaviours can constitute sexual harassment and what their role can be in calling out problematic behaviours.
For training to be effective, it’s important that it is not just a one-off session. Training should be arranged for new starters and on a regular basis for others. These messages should then be reflected in the organisation’s practices and embedded into the culture so that the behaviours expected of all staff is clear.
You should keep records of attendance at training to ensure you can identify who still needs to be covered.
2. Assessing risk
There is a need to identify risks, which will be bespoke to your organisation, and for measures to be in place to control identified risks.
This could be done through risk assessments to allow you to understand where the risks are for the organisation and take action to address them. The risks could also be identified through employee surveys, keeping records of formal or informal complaints, exit interviews, reviewing absences, culture audits and focus groups.
Risks will be specific to each particular organisation, but factors which could increase the risk of sexual harassment may include things like the presence of alcohol at events, lone working, work travel and customer-facing duties. You need to identify the real risks in your own organisation and then consider what can be done to mitigate those risks. This is equally important for risks caused by all kinds of third parties (including customers, clients, service users, patients, friends and family of colleagues, delegates at a conference and members of the public).
3. Reporting channels
You will want to be able to show that they have taken measures to create a culture in which everyone feels safe and can speak up about inappropriate behaviour. There should be clear avenues and channels for people to raise concerns about sexual harassment, and anyone who raises concerns should feel that they are being supported, taken seriously and protected from reprisals. Employee resources and support should be clearly signposted. It is also advantageous to have a variety of reporting channels to suit different preferences and encourage reporting.
4. Dealing with complaints
All complaints should be investigated and dealt with promptly, fairly and in accordance with a complaints-handling process, such as your grievance or harassment and bullying policy. The person who made the complaint should understand the outcome.
Its also important to apply appropriate sanction for breaches of your harassment policy, which could include applying the disciplinary process or providing further training.
The organisation should also carefully reflect on the outcome of any investigation as individual complaints can identify wider cultural problems or risks within certain areas of the organisation. Identifying and addressing those risks is key to being able to show that preventative steps have been taken.
5. Policies
You should ensure that you have in place the relevant policies and that these are kept up-to-date. It’s good practice to review your policies annually, following a legal update, after a complaint /incident or following staff feedback.
The exact ones needed will depend on the size and type of your organisation but could include harassment, alcohol and drugs, social media, lone working and work travel. While this won’t change culture on its own, it is still important to have and they can be used to promote the organisation’s commitment and practices. Involving your employees in the development of your policies can be helpful so that you can tailor them to your specific culture.
Along with developing the appropriate policies, its important to communicate them to your teams. Its common to do this as part of your induction process, but you should also regularly remind employees of your policies and where to find them.
6. Leadership
Senior leadership have a defining influence on the working culture and set the tone for expectations around behaviour. They will need to embed and live the values and behaviour that underpin dignity, respect and inclusion.
How can we help?
If you are already working with us then we will be in contact to support you with these changes.
However, if you are not already working with us then we can help in three ways:
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Training for your team - we recommend that everyone in your organisation undertakes training on sexual harassment in particular, alongside EDI and bullying and harassment. We can provide this via our learning management system with courses priced at £25+VAT per person. You can purchase training credits directly from our website. If you would like to buy 10+ places discounted places are available, please contact us or if you have any questions about which courses may be most suitable.
We also offer HR Skills Workshops aimed at line managers and will cover this topic in an upcoming session. These are advertised on our mailing list – sign up here if you are not already a member.
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1-2-1 advice and planning session – this could be used to help you as a leader explore what you are currently doing, look at practical steps you could take to comply with the legislation and improve your workplace and answer any questions you may have. You can purchase one hour of pay as you go support to assist with this here.
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Policies - you can purchase policies directly from our website. These are template policies that are written in a simple way and can be adapted to suit your organisation. If you would like to ensure you have a legally up-to-date compliant policy then this is a cost-effective quick way of achieving that. If you prefer policies written specifically to suit your organisation or would like your existing policies updated for these changes then please get in touch and we can arrange to complete this for you.
At Bluestone HR we offer a truly personalised approach to HR services. Every organisation is different and that is why we provide a personal tailored service to all our clients. Our experienced team will bring a practical approach to help you look after the most important tool in your organisation, the people that work for you. If you would like to have a no obligation chat about how we may be able to support your organisation get in touch.
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