Tackling Sexual Harassment At Work: A Comprehensive Guide for Employers
Even with the progress made in our workplaces over the years, sexual harassment at work is still a significant issue that requires employers' close attention. With new regulations coming into effect on 26 October this year, it's more crucial than ever for organisations to understand their legal duties and take the right steps to create a safe and respectful environment for everyone.
In this article, we’ll discuss the updated Equality and Human Rights Commission (EHRC) guidance and share practical tips for managers and employers on tackling this issue effectively.
What is Sexual Harassment?
Having a clear understanding of what sexual harassment is and the behaviours that constitute it is critical for recognising when it occurs and when there is a need to take appropriate action.
We can define sexual harassment as unwanted conduct of a sexual nature that violates an individual’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment.
The scope of sexual harassment is broad and covers a range of behaviours, including:
Displaying or Sharing Sexual Images: This includes the distribution or display of explicit content without consent.
Offensive Comments or Gestures: Verbal harassment such as inappropriate jokes, comments about someone’s appearance, or lewd gestures.
Unwanted Touching or Attention: Any form of physical contact or persistent attention that is not reciprocated or welcomed.
Coercion into Sexual Activities: Pressuring or blackmailing someone into sexual acts against their will
Threats of Sexual Violence: Using threats of sexual violence as a means of control or intimidation.
The effects of sexual harassment are not just limited to the individuals involved; they can also have a broader impact on workplace culture, morale, and productivity.
Your Obligation as an Employer
Employers are held vicariously liable for their workers' actions when sexual harassment occurs at work. Liability exists regardless of whether you, as the employer, knew about or condoned the behaviour.
To defend yourself against claims of sexual harassment, you must demonstrate that you have taken "all reasonable steps" to prevent the behaviour from occurring. This typically involves having robust policies in place, providing training, and fostering a workplace culture that does not tolerate harassment.
A New Preventative Duty For Employers: EHRC Guidance
The Worker Protection (Amendment of Equality Act 2010) Act 2023 introduces a new preventative duty for employers to actively prevent sexual harassment in the workplace.
Effective from 26 October this year, it represents a shift from a reactive to a proactive approach to addressing sexual harassment.
The updated EHRC guidance outlines reasonable steps employers can take to fulfill their duty. Importantly, this new preventative duty applies not only to harassment by employees but also by third parties, including contractors, clients, and members of the public.
This is a significant expansion of your responsibility and underlines the need to have the right policies, training and culture in place.
What Informs The Reasonable Steps:
Employer Size: Larger organisations may be expected to implement more comprehensive measures due to their greater resources.
Sector: Certain industries may have higher harassment risks and will need to take more tailored precautions.
Working Environment: The physical and cultural environment of the workplace can influence the likelihood of harassment occurring.
Resources: The availability of financial and human resources will impact what is considered reasonable for an employer to implement.
Risks and Third-Party Interactions: Employers must consider the risks associated with their business and their employees' interactions with third parties.
By considering these factors, you can tailor your approach to preventing sexual harassment to be effective and appropriate to your specific circumstances.
Practical Steps for Managers and Employers
To comply with the new preventative duty and create a workplace that is safe and respectful for all employees, you should consider taking the following practical steps:
1. Policy Implementation
Develop a comprehensive policy that clearly defines sexual harassment and outlines the consequences for offending behaviour. Policies should include detailed procedures for reporting harassment and specify the support available to victims. Regular communication about the policy is essential, especially before work-related social events, where the risk of harassment may increase.
Policies should be living documents, regularly reviewed and updated to reflect changes in the law or the organisation. In addition to setting out the rules, policies should provide examples of unacceptable behaviour to help employees understand the boundaries.
2. Training Programmes
Practical training is a cornerstone of any strategy to prevent sexual harassment. All employees should receive training that covers what constitutes harassment, how to recognise it, and what steps to take if they witness or experience it.
Managers require additional training on handling complaints sensitively and in line with company policies.
Training should not be a one-off event. Regular refresher courses ensure that the knowledge remains current and that new employees receive the same level of education as longer-serving staff. Training sessions can also serve as an opportunity to reinforce the company’s zero-tolerance stance on harassment.
3. Risk Assessment
Conducting a thorough risk assessment is essential for identifying areas where sexual harassment is more likely. This involves assessing who employees interact with during their working day and the risks those interactions might pose. For example, in light of the extended scope of the new duties, roles that involve frequent contact with the public or third-party contractors may carry a higher risk of harassment.
Once risks are identified, control measures should be implemented to mitigate them. This might include adjusting work environments, increasing supervision in high-risk areas, or modifying job roles to reduce exposure to potential harassers.
4. Creating a Supportive Culture
A workplace culture that promotes openness and support is critical in preventing sexual harassment. Employees should feel confident that they can report harassment without fear of retaliation or being dismissed.
You can foster this culture by maintaining transparency in how harassment cases are handled and by ensuring that all reports are taken seriously and investigated thoroughly.
In addition, you should make it clear that harassment of any kind will not be tolerated. This zero-tolerance message should be communicated not just internally but also to external parties, such as contractors and clients.
Including a statement of this policy in contracts and service agreements can help set the expectation that your organisation is committed to preventing harassment.
Dealing with Reports and Providing Support
When a report of sexual harassment is received, it must be handled with care and sensitivity.
The first step is to ensure the complainant feels heard and supported. Confidentiality is paramount, and details of the complaint should be shared only with those involved in the investigation process.
Documentation is crucial in these cases. You should keep detailed records of the complaint, the investigation process, and the outcomes. This not only helps in resolving the current issue but also provides evidence that the organisation is fulfilling its duty to prevent harassment.
Investigations should be conducted impartially, with both the complainant and the alleged harasser given a fair opportunity to present their side of the story. If the investigation confirms that harassment has occurred, appropriate action must be taken. Depending on the severity of the incident, this could range from disciplinary measures to termination of employment.
You should address the incident and offer ongoing support to the complainant. This might include counselling services, adjustments to their working conditions, or additional training. It’s important to continue monitoring the situation to ensure there is no retaliation or further harassment.
Penalties and Consequences of Breaching Your Duty
The EHRC has been granted extensive powers to enforce the new preventative duty. These powers include investigating employers suspected of non-compliance, issuing unlawful notices, and requiring action plans to address breaches. In severe cases, the EHRC can enter into legally binding agreements with employers or seek court injunctions to prevent further unlawful acts.
If an employment tribunal finds that your company has breached the preventative duty, it may order you to pay additional compensation to the harassed worker. Depending on the extent of the non-compliance, this compensation uplift can be up to 25% of the original award.
This enforcement framework further underlines the importance of proactive measures to prevent harassment. Failure to comply with the new duty can have severe consequences, both in terms of financial penalties and damage to your organisation’s reputation.
Final Thoughts
Addressing sexual harassment in the workplace is both a legal and ethical imperative. With the new regulations set to take effect in October, you must take proactive steps to ensure you are compliant and that your workplace is safe for all employees.
By implementing clear policies, providing comprehensive training, conducting thorough risk assessments, and fostering a supportive culture, you can meet your newly expanded legal obligations and create an environment where all employees feel respected and valued.
As the October 2024 deadline approaches, now is the time to review your practices, update your policies, and take action to prevent sexual harassment.
For more details on the new requirements, refer to the full EHRC guidelines on sexual harassment in the workplace here.
If you would like to discuss how I can support you to ensure you are compliant with the new legislation ahead of the October deadline, please get in touch.