For many organisations, the end of the year brings festive gatherings and social events, but these celebrations can be a minefield for employers when it comes to the potential for inappropriate behaviour and misconduct.
A new legal duty is reshaping the responsibilities of employers in tackling workplace sexual harassment. Under the Worker Protection Act 2024, employers are legally required to take proactive steps to prevent sexual harassment of their employees by colleagues and third parties, such as clients and customers.
The new duty requires employers to anticipate scenarios
‘This is incredibly important when you look at the fairly scary statistics from surveys that have been done around sexual harassment in the workplace,’ says Ian Bennington, BDO’s national lead for governance, risk and compliance services. According to a 2023 report, the number of women to have experienced sexual harassment in the workplace is 40%. ‘I am hopeful managers take this seriously,’ he says.
Be reasonable
Employers were already liable for harassment committed by their staff unless the employer could show it took ‘all reasonable steps’ to prevent it, which is a high bar.
The new duty, which came into force in October, goes further and imposes a preventative duty that requires employers to anticipate scenarios where their workers may be subject to sexual harassment in the course of employment and take ‘reasonable measures’ to prevent it.
According to Elouisa Crichton, a partner at Dentons, the new duty ‘is more meaningful’ because nobody ever met that higher threshold. ‘The “reasonable steps” is achievable for employers,’ she says.
Policies must be more than mere formalities
According to guidance from the Equality and Human Rights Commission (EHRC), actions may include implementing and promoting a clear anti-harassment policy, regular training on appropriate workplace behaviour, and clear reporting channels.
Walk the talk
While these policies may already exist in many workplaces, they must be more than mere formalities. Employers must foster a culture where employees feel comfortable reporting issues and believe that their concerns will be addressed appropriately.
‘You must walk the talk. That means if people display inappropriate behaviour, even when they are senior within the organisation or are high performers, you take the brave actions to address it,’ Bennington says.
‘Without a risk assessment, you can’t identify which risks pose a threat’
For example, training sessions should go beyond compliance and actively encourage a workplace culture of respect. In a training programme implemented at one client, Bennington says, ‘They shared a lot of real-life cases and examples designed to shock people and really raise the profile, and I think this helped to drive a positive shift in the culture.’
Assess the risks
Conducting a risk assessment is the essential first step. ‘Without one, you can’t identify which risks pose a threat to your employees and therefore cannot have control measures in place,’ says Lucy Cobb, an employment law specialist at BrightHR.
Factors to consider include power imbalances, job insecurity, lone and night working, the presence of alcohol and customer-facing duties. A male-dominated workforce, a workplace that permits sexist ‘banter’, a casual workforce and being from an ethnic minority may all also suggest a higher risk of sexual harassment.
‘After a risk assessment’, says Cobb, ’employers should log the steps that they have implemented, who is responsible for the implementation, the date of implementation and a review date.’
Unique circumstances
What this means in practice will depend on the employer’s circumstances, including size and resources. What is reasonable in terms of the steps a smaller business should take is different from a larger organisation.
But SMEs still need to carry out a risk assessment and identify where the potential risk of sexual harassment arises, as well as consider the steps they could take to mitigate that risk, Paul Stokey at Shoosmiths says.
‘If they consider a measure but decide it is not reasonable for them to take that step, they should keep a clear record of this, the rationale and any supporting evidence.’
Enforcement action can be taken even without an incident having taken place
The EHRC recommends employers produce an action plan setting out preventative steps they will take and how they will be monitored.
Enforcement action
The change in legislation gives the EHRC power to take enforcement action where there is evidence of organisations failing to take reasonable steps to prevent sexual harassment even without an incident having taken place.
Workers can also make a referral to the EHRC at any point, informing them that their employer is not taking reasonable steps to prevent sexual harassment.
‘Think of it like a health-and-safety risk: they are looking to see if there is a big hole you have left in the floor that somebody could fall into,’ Crichton says.
A tribunal can increase compensation by 25% if the duty has not been met
The act also includes the ability for compensation in sexual harassment claims to be increased.
Although a failure to satisfy the duty will not in itself give rise to a standalone claim in an employment tribunal, if a tribunal finds a worker has been sexually harassed, it can increase the compensation payable by 25% if the duty has not been met.
The government is already proposing to extend the duty to require employers to take ‘all’ reasonable steps to prevent sexual harassment in the workplace, ‘placing a much greater onus on employers than the current requirements’, says Stokey. ‘The consequences of not complying with this new duty are therefore significant.’
