Tag Archive for: sexual harassment

Understanding the new Sexual Harassment Prevention Duty

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In recent years, the conversation around workplace culture and employee wellbeing has intensified, particularly regarding the issues of sexual harassment.

On 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 introduces new sections into the Equality Act 2010, placing employers under a duty to take ‘reasonable steps’ to prevent the sexual harassment of their employees in the course of their employment.  In this article we outline the key aspects of this new Preventative Duty and the practical steps employers should be taking to ensure compliance.

What is the new duty?

The duty places a proactive responsibility on employers to prevent sexual harassment in the workplace, including a duty to protect workers from harassment (of all types) by third parties such as customers or clients. It outlines that employers are required not only to respond effectively to incidents of harassment but also to take reasonable steps to prevent such incidents from occurring in the first place.

Key features of the duty:

  • Proactive Prevention: Employers must implement policies and training aimed at preventing sexual harassment. 
  • Cultural Assessment: A focus on workplace culture will be essential. Employers are encouraged to regularly assess their workplace environment and practices.
  • Clear Reporting Procedures: There must be clear mechanisms in place for employees to report harassment without fear of retaliation.
  • Accountability: Employers can be held accountable not just for incidents that occur but also for failing to take adequate preventative measures.

Employment tribunals will be able to award an uplift of up to 25% to an employee’s discrimination compensation where they find that there has been a breach of the duty.  Given that compensation awards for harassment claims are uncapped, failing to comply with the new duty could be costly.

Practical steps employers should undertake now

1. Conduct a culture audit

Start with a thorough culture audit to assess the current state of your workplace. This should include:

  • Employee Surveys: Gather anonymous feedback on perceptions of workplace safety, inclusivity, and experiences with harassment.
  • Focus Groups: Conduct focus groups to gain deeper insights into employee concerns and suggestions for improvement.
  • Policy Review: Assess existing policies related to harassment, discrimination, and reporting mechanisms. Ensure they align with the new duty.

2. Risk assessments

Implement risk assessments focused on identifying potential harassment risks specific to your workplace. This includes:

  • Identifying High-Risk Areas: Assess departments or roles where incidents may be more likely to occur, such as those involving power dynamics or close personal interactions.
  • Environmental Factors: Consider workplace layout, social activities, and remote working practices that could contribute to harassment risks.

3. Training and awareness

Develop comprehensive training programmes tailored to your organisation’s needs:

  • Mandatory Training: Ensure all employees, including leadership, undergo training on sexual harassment, focusing on recognising, preventing, and responding to inappropriate behaviour.
  • Regular Refreshers: Establish ongoing training sessions to keep the conversation alive and encourage continuous learning.

4. Enhance reporting mechanisms

Make it easy for employees to report incidents:

  • Anonymous Reporting Options: Consider introducing secure and anonymous channels for reporting harassment, ensuring employees feel safe to speak up.
  • Clear Procedures: Develop and communicate clear procedures for how reports will be handled and the support available to those who come forward.

5. Foster open communication

Create an environment where employees feel empowered to discuss concerns:

  • Regular Check-ins: Encourage managers to conduct regular one-on-one check-ins with their team members to discuss workplace culture and any concerns they may have.
  • Leadership Role: Ensure leaders model appropriate behaviour and promote a zero-tolerance stance on harassment.

6. Monitor and evaluate

Implement a system to monitor the effectiveness of your measures:

  • Regular Reviews: Set up a schedule for regular reviews of harassment policies and procedures, incorporating employee feedback.
  • Incident Tracking: Keep track of reported incidents and responses, using this data to inform future training and policies.

Conclusion

The new Preventative Duty presents both challenges and opportunities for organisations. By taking proactive steps now – conducting audits, implementing robust training programmes and fostering a culture of continuous review and open communication – employers can not only comply with the new legislation but also contribute to a more respectful and inclusive workplace.

If you would like discuss how you can ensure your organisation is compliant with the new duty, or to enquire about our Workplace Culture Strategy Support Package, training courses, or risk assessment templates, please contact Jo Bradbury in our team, on 07570 372118.

New duty to prevent sexual harassment in the workplace

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In today’s rapidly evolving work environment, creating a safe and respectful working environment is more crucial than ever.

Pending any changes following the general election, the Worker Protection (Amendment of Equality Act 2010) Act will come into effect on 26 October 2024, strengthening protections against sexual harassment for workers. In anticipation of this, the EHRC has launched a consultation to update its technical guidance on the new duty, with the consultation period ending on 6 August 2024. We examine the upcoming enhancements and suggest how employers can prepare for compliance in the months ahead.

Understanding the new duty

This new law will impose a duty for employers to take ‘reasonable steps’ to prevent sexual harassment. Tribunals will have the power to increase compensation by up to 25% if there is a successful sexual harassment claim and the employer has breached this duty. Employers are required to adopt a proactive approach, addressing potential issues before they arise rather than reacting to incidents after they occur. Compliance with this law is not just about avoiding legal repercussions; it’s about fostering a culture of respect and inclusion, which can enhance employee satisfaction and productivity.

However, not everyone believes the new duty has gone far enough. They point out that the requirement for employers to take ‘reasonable steps’ falls short of ‘all reasonable steps’ and the omission of an express duty to protect workers against harassment by third parties. The Chartered Institute for Personnel and Development (CIPD) has also voiced concerns regarding the efficacy of the new duty but acknowledges the importance of this legal change in building awareness and encouraging compliance.

Key steps

In preparation for the new duty, there are some key steps employers can take to ensure compliance.

  • Staff listening exercise: Conduct a feedback activity to capture common themes, experiences, and to help identify areas of focus.
  • Risk assessment: Where the organisation identifies areas of risk and plans how these will be mitigated – this will help inform the “reasonable steps” to be taken.
  • Build awareness: The first step is to increase awareness regarding what constitutes sexual harassment and educate their workforce. Few employees will appreciate that harassment can include unwanted conduct related to a protected characteristic, creating an intimidating, hostile, degrading, humiliating or offensive environment. Even fewer will be aware that sexual harassment specifically involves unwanted conduct of a sexual nature with that impact. Regular training sessions should be provided to all staff which should include how to raise a concern and how sexual harassment will be addressed.
  • Organisational and Cultural Change: Senior leaders must act as role models for inclusive values and behaviours. Their influence as ambassadors for the organisation both internally and externally is crucial in fostering a respectful culture of both physical and psychological safety.
  • Develop your Policy: While policies alone will never suffice to effect cultural change, it is useful to have a clear written framework defining what constitutes sexual harassment and making clear how sexual harassment will be addressed.
  • Upskill your managers: Specific training for managers on how to tackle sexual harassment should be provided, including how to support any team members who are impacted.
  • Identify and promote your reporting channels: Confidential and accessible routes to report concerns relating to sexual harassment should be widely advertised. The organisation should always ensure they are clear that sexual harassment is unacceptable, and any concerns will be treated seriously and with sensitivity.
  • Timely Investigation: Employers should investigate sexual harassment claims thoroughly and in a timely manner. We recommend investigations should be completed by someone appropriately trained, without direct connection to those involved. Depending on the circumstances, appointing an external independent investigator can be beneficial to ensure impartiality.  
  • Support: Providing support to those impacted is critical. This support can include counselling support, adjustments to work arrangements, or temporary leave if necessary.
  • Review your progress: Monitoring gender diversity, complaints, as well as seeking input on the wider experiences of your teams via engagement exercises can help to shine a light on the impact of any steps taken to prevent sexual harassment. You should regularly analyse these sources of information and take action on any learning.

The new duty to take reasonable steps to prevent sexual harassment in the workplace provides an opportunity for employers to reflect upon their organisational culture. Legislation alone will not create change; it will be up to individual employers to assess their starting point and take proactive steps to improve their current approach to the prevention of sexual harassment in the workplace.

If you would like any support relating to the new duty to prevent sexual harassment or in relation to an individual complaint, please contact Kathryn Chidzey-Jones in our team on 07881 092524.

Russell Brand – what would you do if he was your employee?

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Imagine a situation where an employee of yours is accused of serious sexual offences outside of work that doesn’t involve any work colleagues.

At first glance, a default approach might be to say that what happens outside of work is a private matter for the employee and so does not and should not affect their employment. But, it’s often more complicated than that.

In this sort of case, an employer may want to be mindful of three possible scenarios:

  1. Whether the employee’s behaviour outside of work affects, or may affect the organisation’s reputation.
  2. Whether the employee’s alleged behaviour impacts on whether their colleagues would want to work with them.
  3. If your organisation is subject to the Keeping Children Safe in Education (KCSIE) rules, then a third question might be about transferrable risk. While the considerations about this are beyond the scope of this piece, it is definitely still worth seeking advice about.

It’s worth remembering also, that the employment law test to arrive at a decision is on the balance of probabilities. This is a lower bar than the criminal test which is beyond reasonable doubt. This means that employers can and should arrive at their own conclusions and not have to feel that they need to wait for, or follow, the judgments and decisions in any criminal case. A word of warning here though: if the police are involved, you need to ensure that you don’t take any steps that the police might claim prejudices their own investigations, so it’s important to open a dialogue with them at an early stage.

This is a very complex area, which has become tricker with the arrival of social media and people commenting on a difficult situation. We recommend you should avoid any knee jerk reactions and promptly form a team who will deal with the process. If the incident has become widely known then let employees know who will be dealing with it and, for instance, designate a point of contact who will deal with media queries.

The standard advice regarding a disciplinary process also applies of ensuring a separation of roles, so someone should be given the task to investigate the matter, someone else (ideally more senior) should be given the task of hearing any disciplinary, should that be necessary; and then a third person (more senior still) should be identified as an appeal hearing manager.

It goes without saying that it is also sensible to take advice. Your organisation may well be facing this challenge for the first time whereas we have got experience in dealing with these matters.

For further advice and guidance on this matter or other HR related concerns, please contact Simon Martin in our team on 07384 813 076.

Why Staff Training Is Often More Effective than Behavioural Policies

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In our many investigations into misconduct and harassment allegations, a regular issue is when a colleague makes comments about another colleague’s appearance. 

Those remarks are often intended to be complimentary but can make the recipient of those remarks to feel ‘othered’.

This is a word that we are increasingly seeing in our interviews and it raises an interesting point.

Compliment or Criticism?

If a male manager comments regularly on how a female colleagues is dressed, their hair, or whether they have lost weight, that manager may well say that they intended it to be received as a positive thing.

However, if the manager doesn’t also comment on any male colleagues’ appearance then there is real risk that the female recipients of his comments could feel singled out, embarrassed or offended, particularly if the comments are made in front of a group of other people.

We recently did an investigation where something similar to the above happened. Whilst the comment in question was intended to be a compliment, in the mind of the recipient it merely served to highlight how something about her appearance was different to all of the other colleagues present.

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What Are the Limitations of Behavioural Policies?

These examples show the limits of policies, as it is very difficult to draft a policy that covers every eventuality. Who would have thought for instance that you would need to specifically deal with looking at pornography whilst sat in the House of Commons?

If you do try to cover every possible eventuality in a policy then you will soon find that the policy will become very long and unwieldy and it will probably put a lot of employees off from reading it.  

Experience also says that as soon as you finish a policy like that and press print or post it on your intranet, then you’ll want to add to it – it will never stop growing.

What’s a Better Approach?

In a word: training. You should train your staff on the approach you want them to take, giving them examples of the sort of conduct mentioned above. You should then ask them to reflect on how it would make them feel if a colleague commented just on their appearance on a regular basis.

We tend to find that taking that approach and getting the delegates to consider the impact of certain behaviours can result in longer lasting changes in behaviours. Those changes will be much more effective than simply handing them a lengthy policy and asking them to read and digest it.

Narrow Quay HR delivers training on these types of issues. For further information about our training, please contact Simon Martin in our team on 07384 813 076 to find out more.