Employment Law: What must employers do to prevent sexual harassment in the workplace?

By Alex Jones, Managing Director of 365 Employment Law.

In October 2024 the Worker Protection (Amendment of Equality Act 2010) Bill will come in to force, strengthening existing protection for workers against sexual harassment. The new law places a new duty on employers to take ‘reasonable steps’ to prevent sexual harassment. Tribunals will have the power to increase compensation by up to 25% if they find an employer has breached this duty.

Employers already have a duty to take reasonable steps to prevent sexual harassment of workers by their colleagues. However, this new duty coming into force gives an important opportunity for employers to build awareness and encourage compliance to prevent sexual harassment in workplaces.

The first step for employers is understanding what sexual harassment is and educating their workforce. ‘Harassment’ covers unwanted conduct related to a protected characteristic, such as gender or race, which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Sexual harassment is unwanted conduct of a sexual nature that has that same effect.

The new preventative duty still requires employers to take reasonable steps to prevent sexual harassment by any perpetrator, including third parties such as customers, clients and members of the public.

Organisations may have policies in place to address sexual harassment, speaking up ambassadors and whistleblowing schemes, Board Champions for women and posters on the walls talking about zero tolerance. However, the last year has shown they can still find themselves blindsided when allegations are made and prevalence of sexual harassment exposed.

We have all seen cases in the media of well-known organisations who have got it wrong. When they have not shone the light closely enough or asked the right questions. Perhaps not acknowledged that they needed to ask any questions. And we have all seen the reputational (and financial) damage this has caused.

What are the major challenges for employers?

• Ingrained unchallenged behaviours – this means workplaces don’t create a psychological safe space which allows all staff to be themselves and disclosures are rare

• Some solutions have a deleterious effect – for example, a ‘zero tolerance’ policy will quickly lose the trust of employees if one person feels unheard and similarly, ‘champions’ only have true value if they have clear objectives and accountability; without these, it’s tokenism

• A clear line of sight for effective reporting can be challenging – this was particularly reported on by larger employers working in multiple countries

• Trust in employers can be quickly lost – women who are victims of harassment are more than likely to leave the organisation within 18 months of a complaint, no matter the outcome

• Money is perceived to outweigh people so problems are not aired – examples such as finance directors sitting on Boards but not the HR director, and companies celebrating high-performing income-generating staff, no matter their behaviour

How employers can prevent sexual harassment

• Employers should be proactive and systematic in how they prevent and tackle sexual harassment at work: they should not make this a ‘tick-box’ exercise but rather show evidence of the reasonable steps taken. To do this, they need to focus attention on a number of priority areas:

• Organisational and cultural change: Senior leaders have a huge influence on the working culture in an organisation and set the tone for expectations around behaviour and workplace civility. They need to embed and live the values and behaviour that underpin dignity, respect and inclusion.

• Policies and procedures: A formal policy won’t change a culture on its own but it’s important to have written policies and guidance in place. These should define sexual harassment, give examples of what it is and outline everyone’s responsibilities for preventing and tackling it. These can be used to promote the organisation’s commitment and practices to prevent and educate the workforce about sexual harassment.

• Training and development: There should be regular training sessions for all staff so that they understand what sexual harassment is and their individual and collective role in preventing/addressing it.

• Reporting channels and investigating: There needs to be well-promoted reporting channels for complaints and employers need to respond to these promptly, fairly and thoroughly. Any evidence of discriminatory behaviour or harassment among staff needs to be investigated and acted on swiftly and a clear message sent out that such behaviours will not be tolerated.

• People management capability: Line managers play an important role in identifying, challenging and dealing with unfair treatment including sexual harassment. They need to have the training, education and guidance to give them the confidence to tackle sexual harassment.

• Monitoring and review: Monitoring the gender diversity of the workforce at every level, including for recruitment and promotion. This will help highlight any potential discrimination or harassment on grounds of gender. Staff attitude surveys will enable the organisation to collect feedback in areas like gender equality and bullying and harassment.

Employers should always take advice at the earliest opportunity.

Tel: 01903 863284
ajones@365employmentlaw.co.uk
www.365employmentlaw.co.uk