In today’s evolving workplace landscape, the issue of sexual harassment at work and the work-related environment remains a pressing concern for employers and employees alike. Recent surveys have shed light on the pervasive nature of this problem, revealing that a significant portion of workers continue to experience sexual harassment at work not only from colleagues, but also from third parties such as suppliers, customers and patients. As new legislation approaches, it’s imperative for employers to take reasonable anticipatory steps to prevent sexual harassment at workplace to improve workplace culture, the organisation from expensive and damaging claims and its workforce from such abhorrent conduct.
A 2023 survey by the Office for National Statistics (ONS) found that over a quarter of those who had experienced sexual harassment reported that it occurred in their workplace. This statistic alone underscores the urgency of addressing this issue. Moreover, a study conducted by Birkbeck, University of London, revealed that 45% of doctors worldwide (52% female and 34% male) had been sexually harassed at work. The UK was among the countries with the highest levels of such incidents, highlighting that the problem extends beyond co-worker behaviour.
Upcoming Legal Changes and Their Implications
The Worker Protection Act (Amendment of Equality Act 2010) Act 2023, to take effect on October 26th, represents a significant shift in the legal landscape. This new legislation will place a greater onus on employers to take reasonable anticipatory steps to prevent the sexual harassment of their workers. Crucially, this new anticipatory duty includes the prevention of sexual harassment by third parties, such as customers and suppliers.
While workers won’t be able to bring standalone third-party claims in an Employment Tribunal, the implications for employers are substantial. If an employer’s failure to act is deemed discriminatory, or if an employee can claim constructive unfair dismissal as a result, they may face legal consequences.
Employment Tribunals will have the new power to award up to 25% more compensation to a claimant, in addition to the already uncapped compensation award if the employer is found to have breached the new duty. Furthermore, the Equality and Human Rights Commission (EHRC) could take enforcement action against the employer.
It’s important to note that the reasonableness of an employer’s anticipatory/preventive measures will be judged based on factors such as the organisation’s size, sector, working environment, and available resources. This means that while all employers must take reasonable action, the specific steps required will vary depending on the employer’s circumstances.
Preparing for the New Legislation
With the October 26th deadline approaching, employers should take immediate steps to prepare for the new legal requirements. These preparatory measures should include:
- Conducting comprehensive workplace audits to identify potential hotspots and problem areas. This process should involve reviewing previous reported incidents, analysing exit interview statistics, and examining attrition rates to gain a fuller picture of the workplace environment.
- Implementing anonymous surveys to uncover unreported instances of sexual harassment. These surveys can provide valuable insights into the true extent of the problem and help identify areas that require immediate attention.
- Performing detailed risk assessments based on the information gathered from audits and surveys. These assessments will help organisations identify specific steps they can take to mitigate the risk of sexual harassment occurring in their workplace.
As employers work to create safer work environments and protect themselves from potential legal consequences, they should focus on several key areas:
- Policy and Process Review
- Employers should thoroughly review and update their existing policies and contracts to ensure they align with the organisation’s values and address the new legal requirements. This review should extend to expectations of staff and third parties, including agency staff, contractors, clients, patients, customers, suppliers, and the general public. Some employers are also reconsidering their approach to alcohol consumption at work-related functions, recognising the potential risks associated with these events.
- Employee Engagement and Communication
- Clear, consistent and authentic communication is crucial in addressing sexual harassment at work. Employers should explicitly communicate a zero-tolerance approach towards sexual harassment in the workplace, outlining the consequences of such conduct. This message should be conveyed through various channels, including email communications and notices displayed prominently in the workplace and in advance of work-related events.
- Equally important is encouraging employees to report sexual harassment at work concerns about both staff and third parties. Employers should provide clear guidance on how sexual harassment at work can be reported and outline the steps they will take to deal with any instances. By fostering an environment where employees feel safe and supported in reporting such concerns, organisations can more effectively address and prevent sexual harassment at work.
- Comprehensive Training Initiatives
- Implementing high-quality, meaningful training for all employees is essential. It’s important to note that a “tick-box” approach to training is insufficient; existing case law demonstrates the need for experiential and up to date training programs. These programs should focus on giving employees the skills and confidence to call out inappropriate behaviour constructively, providing clear guidance on how and where they can raise concerns.
- Training should be mandatory and regular for all employees, and organisations should maintain detailed records of attendance and course content. This documentation can serve as evidence of the employer’s proactive approach to preventing sexual harassment at work.
- Monitoring, Accountability, and Continuous Improvement
- Organisations should establish clear lines of accountability by assigning responsibility for monitoring, evaluating, and reporting on the measures in place to eliminate sexual harassment in the workplace. Regular assessments of the effectiveness of implemented strategies will help drive greater compliance, continuous improvement, and a better workplace environment for all.
- When responding to sexual harassment concerns, employers should take great care with language and terminology, minimising delays in the process. Selecting experienced investigators who adopt a trauma-informed approach is crucial, as is drafting clear Terms of Reference that consider data sharing issues from the outset.
Providing considered feedback to key parties, including both the reporter and the subject of the concerns, is essential in building trust in the process and encouraging the future reporting of concerns.
Conclusion
As employers navigate the changing legal landscape surrounding workplace sexual harassment, it’s clear that a comprehensive anticipatory approach is required. By investing in training, consistently enforcing policies, being prepared for challenges, encouraging those affected to speak up and maintaining open lines of communication, organisations can create safer, more respectful work environments for all. This not only helps to protect workers from the traumatic effects of sexual harassment at work but also mitigates the legal and reputational risks faced by employers in today’s increasingly scrutinised business environment.
Ray Silverstein is a Partner at Browne Jacobson. He heads Browne Jacobson’s employment team in the London office which includes immigration advice. Recognised by the Legal 500, Raymond advises a stellar list of private and public sector clients, including brands within the world’s largest luxury goods group, international fashion brands (in particular ones based in France with UK operations), insurers, financial services, professional services employers, membership organisations, arm’s length, non-departmental, and other public sector bodies.
October 15, 2024
Employers need to be proactive to address problem of sexual harassment at work
by Ray Silverstein • Comment, Workplace
A 2023 survey by the Office for National Statistics (ONS) found that over a quarter of those who had experienced sexual harassment reported that it occurred in their workplace. This statistic alone underscores the urgency of addressing this issue. Moreover, a study conducted by Birkbeck, University of London, revealed that 45% of doctors worldwide (52% female and 34% male) had been sexually harassed at work. The UK was among the countries with the highest levels of such incidents, highlighting that the problem extends beyond co-worker behaviour.
Upcoming Legal Changes and Their Implications
The Worker Protection Act (Amendment of Equality Act 2010) Act 2023, to take effect on October 26th, represents a significant shift in the legal landscape. This new legislation will place a greater onus on employers to take reasonable anticipatory steps to prevent the sexual harassment of their workers. Crucially, this new anticipatory duty includes the prevention of sexual harassment by third parties, such as customers and suppliers.
While workers won’t be able to bring standalone third-party claims in an Employment Tribunal, the implications for employers are substantial. If an employer’s failure to act is deemed discriminatory, or if an employee can claim constructive unfair dismissal as a result, they may face legal consequences.
Employment Tribunals will have the new power to award up to 25% more compensation to a claimant, in addition to the already uncapped compensation award if the employer is found to have breached the new duty. Furthermore, the Equality and Human Rights Commission (EHRC) could take enforcement action against the employer.
It’s important to note that the reasonableness of an employer’s anticipatory/preventive measures will be judged based on factors such as the organisation’s size, sector, working environment, and available resources. This means that while all employers must take reasonable action, the specific steps required will vary depending on the employer’s circumstances.
Preparing for the New Legislation
With the October 26th deadline approaching, employers should take immediate steps to prepare for the new legal requirements. These preparatory measures should include:
As employers work to create safer work environments and protect themselves from potential legal consequences, they should focus on several key areas:
Providing considered feedback to key parties, including both the reporter and the subject of the concerns, is essential in building trust in the process and encouraging the future reporting of concerns.
Conclusion
As employers navigate the changing legal landscape surrounding workplace sexual harassment, it’s clear that a comprehensive anticipatory approach is required. By investing in training, consistently enforcing policies, being prepared for challenges, encouraging those affected to speak up and maintaining open lines of communication, organisations can create safer, more respectful work environments for all. This not only helps to protect workers from the traumatic effects of sexual harassment at work but also mitigates the legal and reputational risks faced by employers in today’s increasingly scrutinised business environment.
Ray Silverstein is a Partner at Browne Jacobson. He heads Browne Jacobson’s employment team in the London office which includes immigration advice. Recognised by the Legal 500, Raymond advises a stellar list of private and public sector clients, including brands within the world’s largest luxury goods group, international fashion brands (in particular ones based in France with UK operations), insurers, financial services, professional services employers, membership organisations, arm’s length, non-departmental, and other public sector bodies.