Enhanced worker protection requires specific risk approaches
New legislation, in the form of the Worker Protection (Amendment of Equality Act 2010) Act 2023, introduced on 26 October 2023[1], brings greater protection to those suffering workplace sexual harassment. Consequently, there is more for employers to do, in this area of risk management.
This stricter legislation comes at a time when allegations of sexual harassment are making significant headlines, in various high profile corporate cases. General awareness and consciousness of what constitutes inappropriate conduct is currently heightened, increasing an employer’s risk.
Whilst the 2010 Equality Act prohibited sexual harassment and situations where an employee could be treated less favourably, after rejecting or submitting to conduct of a sexual nature, the law now expects more. Simply having an anti-harassment policy and evidence of training may not be sufficient, should an employee bring a case. However, a record of all training of this kind should still be maintained, and kept as it may help an employer defend a potential claim or allegation in the future.
The new law imposes a mandatory duty on employers to take ‘reasonable steps’ to protect employees. What is deemed ‘reasonable steps’ is open to judicial interpretation and influenced by arguments presented by claimant lawyers. It is essential that employers increase efforts to stamp out sexual harassment.
What is sexual harassment?
Harassment, in law, covers unwanted conduct relating to a protected characteristic, which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Sexual harassment is unwanted conduct of a sexual nature, which has this effect.[2] 58% of women have experienced some form of this at work, according to the Trade Union Congress.[3]
If the employer is held liable for the sexual harassment, a tribunal can now levy an increase of up to 25% in the compensation award. It is probable that higher-end increases will be imposed in instances where an employer cannot demonstrate a proactive approach to this issue.
Furthermore, the Equality and Human Rights Commission (EHRC) has been further empowered, as it can now investigate non-compliant employers, issue unlawful act notices and potentially use court orders to enforce compliance.[4]
Sexual harassment of employees by third parties
Whilst the legislation’s original intention was to make employers ‘vicariously liable’ (liable by virtue of being the employer with a duty of care), in instances where a third party, such as a client or member of the public, sexually harassed an employee, the current legislation, at face value, does not impose such liability.
Legal experts warn, however, that such a duty is included through the ‘back door’, with EHRC draft guidance notes suggesting ‘reasonable steps’ to prevent sexual harassment include preventing harassment by third parties. With a new EHRC technical guide and Employment Code planned to reflect preventative duty, employers need to consider wider sexual harassment.
Employers must be proactive and not reactive. Combatting sexual harassment should not be regarded as a tick-box exercise but a necessary part of business practice.
How to tackle sexual harassment
The starting point is a thorough risk assessment, to analyse how and where sexual harassment could arise in the workplace, and in the wider environment within which employees carry out work- related duties. The nature of work carried out, employee exposure to third parties and the gender split within certain functions and teams may all be relevant.
Systems should be introduced, through which the reporting of concerns or incidents can be done confidentially and without fear of retaliation, through a variety of channels.[5]
A means of delivering prompt, thorough, fair and independent investigations into complaints should be devised, and appropriate and proportionate sanctions agreed and applied, to punish wrongdoing. A corporate policy on sexual harassment should be published and included in the employee handbook. Regular reviews, ideally following an examination of company data with regard to reports of sexual harassment, their regularity and their outcomes, should be scheduled. Meanwhile, employers must not neglect instances of bullying and discrimination.
Setting the culture and creating the safety net
However, a written policy does not change a workplace culture. Senior leaders need to set the tone and outline and demonstrate the values and behaviours expected, ensuring workplace interactions take place against a backdrop of dignity, respect and inclusion.
Training is also required, to enable all employees to recognise and red flag sexual harassment situations, as well as understanding their role in preventing these.
Line managers need the skills to challenge unfair treatment and inappropriate behaviours, as introducing staff surveys, to collate feedback, should be a priority.
Preventing issues, in a robust and meaningful way, is much better than a cure. However, employers should also remember that even unfounded allegations can result in costly legal defences. To protect against these, a risk management safety net, constructed from relevant insurance policies, is needed. The policies can then assist, should a case be brought against the company or a director.
To discuss such covers, please get in touch.
Sources:
[1] https://www.legislation.gov.uk/ukpga/2023/51/contents
[2] https://www.cipd.org/uk/views-and-insights/thought-leadership/cipd-voice/new-duty-to-prevent-sexual-harassment/#:~:text=From%20October%202024%20the%2
Worker,steps’%20to%20prevent%20sexual%20harassment
[3] https://www.tuc.org.uk/news/new-tuc-poll-2-3-young-women-have-experienced-sexual-harassment-bullying-or-verbal-abuse-work#:~:text=Three%20in%20five%2(58%25),poll%20published%20today%20 (Friday)
[4] https://www.wiggin.co.uk/insight/from-reaction-to-prevention-the-new-duty-on-uk-employers-to-stop-sexual-harassment/
[5] AXA Group presentation by Carlene Clifford, 18 June 2024.