The employer’s duty to prevent sexual harassment at work

As we head into Autumn, there are a number of employment law changes and updates. The Equality Act has been amended to include greater responsibility for employers to take reasonable steps to prevent sexual harassment at work, and this comes into force in October 2024.

The Fawcett Society, reporting in 2023, shared that 40% of women experience sexual harassment in the workplace. This number is even higher for disabled and Black minoritised women and doesn’t include those incidents that go unreported.

In this blog, we will explore what sexual harassment is, help employers educate their workforce and set out the steps that employers can proactively take to create a safe and respectful workplace for everyone.

What is Sexual Harassment?

Sexual harassment is unwanted and inappropriate behaviour of a sexual nature that makes someone feel uncomfortable, threatened, or humiliated. This can include unwanted touching, comments, jokes, gestures, or advances. It can happen in person, online, or through other forms of communication.

Sexual harassment is a crime in the UK and can be addressed under both civil and criminal law. It is illegal under the Equality Act 2010, which protects individuals from unwanted behaviour of a sexual nature that violates their dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment.

Under the new legislation, Employment Tribunals will have the power to increase compensation up to 25% if an employee brings a claim of sexual harassment against their employer and the tribunal finds an employer has breached this duty.

Sexual harassment in the workplace

Sexual harassment is unwanted behaviour of a sexual nature. The law (Equality Act 2010) protects the following people against sexual harassment at work:

• Employees and workers
• Contractors and self-employed people hired to personally do the work
• Job applicants

To be sexually harassed, the unwanted behaviour must have either:

• Violated someone’s dignity, whether intended or not
• Created an intimidating, hostile, degrading, humiliating or offensive environment for them, whether intended or not

Employees subjected to harassment can experience stress, loss of confidence and motivation, and a higher level of sickness absence, all of which can lead to higher staff turnover and low team morale.

Who is responsible?

Employers should do all they can to try and prevent sexual harassment from happening in the first place. Anyone who sexually harasses someone at work is responsible for their own actions. It is worth noting that employers can be responsible too; this is called vicarious liability. This is why it is imperative to ensure that employers are aware of the legislation.

What is changing?

Currently, the law states that if an incident of sexual harassment takes place in the workplace, there is a defence available to an employer if they can show that they took “reasonable steps” to prevent the employee from undertaking discriminatory actions. However, the Act takes this further by introducing responsibility on employers to take preventative measures to prevent sexual harassment.

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Practical steps for employers

Organisational and cultural change – Set the tone for zero tolerance of any behaviour of sexual harassment in the work environment. Leaders can influence the working culture and ensure that the values of the business are clear and lived at every level. Taking prompt action when concerns are raised and ensuring that all complaints are investigated is key.

Encourage an open culture where staff feel able to and know how to raise concerns and be assured that they will not suffer adverse consequences if they do so. Management and leaders should model respectful and transparent behaviour, demonstrating a genuine commitment to an open culture.

Policies and procedures – Define your policies, give examples of what sexual harassment 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. Use onboarding as a means to ensure that all new employees are aware of the policy, what constitutes sexual harassment and the zero-tolerance policy. Train managers and HR personnel on how to respond to harassment reports effectively and compassionately.

Staff training – Effective training is essential to prevent harassment and promote a safe and respectful workplace. Develop clear objectives to ensure all employees understand what constitutes harassment and the impact it has on individuals. By providing clear information, practical strategies and continuous support, employers can empower their employees to contribute to a positive and inclusive work environment.

Understand the organisation’s vulnerabilities – Every business will have different weak areas where harassment may be more likely to occur. As with other areas of an organisation, conducting a risk assessment will help highlight those areas and then add actions to mitigate. This could be to assess whether there are individuals or groups at risk.

Reporting channels and investigating – There will need to be awareness and easy-to-follow procedures for reporting complaints and the organisation needs 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, with a clear message sent out that such behaviour will not be tolerated.

Training for leaders within the business – line managers and leaders within the business play an important role in identifying, challenging and dealing with unfair treatment, including sexual harassment. All leaders within the business need to have the training to support them in tackling sexual harassment.

Employee support – provide resources such as counselling and support services, (e.g., EAP – Employee Assistance Programme) for employees affected by harassment.

Monitoring and review – Monitoring the gender diversity in the organisation at every level, including recruitment and promotion, will help to highlight any potential risks of discrimination or harassment on grounds of gender. Employee surveys are a useful way for organisations to collect feedback in areas of gender equality, bullying and harassment.

Conclusion

Organisations, employers, and employees should not tolerate any form of unfair treatment such as sexual harassment. Employers have a critical and multifaceted duty of care to prevent and address harassment in the workplace. Every company must be a safe environment for its workforce, ensuring that everyone is treated with respect and dignity.

By building an inclusive workplace based on acceptance of individuality, positive relationships, healthy interactions between peers and managers and by taking proactive steps and responding effectively to incidents, employers can protect their staff, foster a positive work environment and mitigate legal risks.

If you are an employer needing help with dealing with sexual harassment claims or creating robust policies and procedures within your business, please contact a member of our team today.