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Claire Taylor-Evans

Employment

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Emma O'Connor

Employment


The way employers respond to allegations of sexual harassment will play a big part in the new employer duty to take reasonable steps in preventing workplace sexual harassment, Boyes Turner's employment team discuss their top tips as to what should be on the HR agenda.

 

Changing Times

Employers are vicariously liable for what their workers do at work. Moreover, unlike other areas of employment law, claimants can also bring claims for discrimination and harassment against their employer but also individuals (i.e. managers or colleagues) who they say are also liable. This is enough to get most manager’s attention in the manager training sessions we run.

We have had the statutory defence when it comes to discrimination, harassment and sexual harassment under the Equality Act 2010 for many years. Most employers are aware of the steps they should be taking in the wider context of protecting their people from discriminatory or harassing behaviours, and will seek to raise the defence in litigation. However, many employers are either not aware or choose to pay the compensation rather than act proactively. This can be for many reasons; however, inertia does not do anything to combat toxic and unsafe working environments.

Enter the Worker Protection (Amendment of Equality Act 2010) Act 2023. This new piece of legislation focuses on claims which are brought specifically for sexual harassment or where sexual harassment forms part of the claim. Its aim is to do away with the reasonable steps lottery over whether your employer does or does not take their duties seriously, and instead puts the risk of compensation uplift firmly in the hands of an employment tribunal.

 

Unwanted conduct of a sexual nature

This piece of legislation focuses on claims for or about unwanted conduct of a sexual nature which has the purpose or effect of creating – for the victim – a hostile, degrading or intimidatory workplace environment or violating their dignity. Unwanted conduct might include sexual/suggestive looks or comments, inappropriate sexual material being shared or viewed at work, physical touching and sexual assault. The definition or possible instances of what constitutes “unwanted conduct of a sexual nature” is potentially very wide. 

 

Myth busting

Stereotypically, we think of instances of sexual harassment occurring where there is a sex and often power imbalance. So, a male manager propositioning a more junior female colleague. Whilst statistically, this is still the greatest risk demographic, sexual harassment can occur female/male as well as in same sex situations.

Also, the alleged victim does not need to be the recipient of the sexually harassing behaviour. For example, a male colleague may feel their workplace environment is hostile or degrading because they are aware that such behaviours towards other staff is happening and being tolerated. Sexual harassment has a wide net.

 

Positive and proactive duty

The new right is not a standalone claim. Employees cannot bring a claim that their employer has not taken positive and proactive steps. However, if a colleague is successful in their claim), it is incumbent on the employer tribunal to consider whether the reasonable steps duty has been discharged by the employer. An employment tribunal can increase compensation – which we should remember in a discrimination/harassment context is potentially without limit – by up to 25%. We should also remember that the EHRC also have new enforcement powers.

Could the increase apply to claims for unfair dismissal, which may also include issues of sexual harassment at work? We wait and see how employment tribunals will interpret their new compensation increasing powers. But yes, some commentators are raising the flag about this.

 

Reasonable steps

This is not about having a “one size fits all” approach. What is a reasonable step will depend on such considerations as: who the employer is, what sector they work in, the working environment and where they are specific risk factors (such as contact with third parties). Some employers who have different working environments within their business (retain arm, manufacturing arm, front/back-office staff) will need to think about the risks for each area of the business.

 

Third Party Risk Factor

Note – new proposals under the Employment Rights Bill

The risk of third-party harassment is not in the current legislation – however, the newly published Employment Rights Bill includes provision for employers to be liable for third party harassment.  However, when one considers the Equality and Human Rights Commission (EHRC) technical draft guidance, it includes fairly and squarely the obligation on employers to include the risk of third-party sexual harassment within the new duty. Will employers be required to consider the risk of third parties? The final draft of the technical guidance has been published and clearly covers third party harassment, so this should be included within your risk assessments and also training programmes.

 

Tick tock

The 26th October is fast approaching, but there is time for employers to start thinking about and preparing for the new preventative and positive duty. Here are our top tips:

Engage – engagement across the business from the top to the bottom is going to be key.  Boards, senior leaders and others need to engage with this risk and not dismiss it as another “HR thing”.

Risk Assess – unless employers know where the potential risks are, how can it take reasonable steps to avoid them? So, our first “tip” is to carry out a risk assessment. How do staff work, do they come into contact with third parties, where could the risk areas be – meetings, social events, evening working. We can help with our lawyer-led Risk Assessment and Red Flag report – See further below.

Engage with staff – whether there is a union or an employee forum, it would be good to engage with your staff as part of the risk assessing process. What thoughts do they have on where the risk factors might be? What ideas do they have which might help the business fulfil its duty? Be careful what you ask for, of course, keep the questions targeted, but engaging with staff and putting in the place their recommendations should demonstrate a willingness on the part of the employer to be open and transparent.

Policies and processes – updating policies to cover sexual harassment specifically is pretty much a given. Whether you have a separate policy or update an existing anti-harassment one is up to you; however, it should be clear, unambiguous, give examples of the sorts of behaviours you are seeking to prohibit and also warn of consequences. Your policy should also be communicated widely and not buried in a mass of jargon or documents. Also, when there are social or client events, set out the behavioural expectations.

Training and awareness – these really are key.  Boards, senior leaders, managers, and staff all have a role to play in helping the business meet its obligations. Business should be regularly training their staff – full stop.  However, this is even more important given the new duty. We are running in person and virtual training courses for employers which set out the rules and the risk areas. These set out the legal obligations as well as practical steps that can be taken – see it, say it.

Leading from the top – role modelling behaviours are paramount across the board. Managers should not only “talk the talk” but also “walk the walk” when it comes to implementing your sexual harassment policies. 

Open communication – if things go wrong, and they may do so, how a business responds to a concern is again really important. Is there an open culture about discussing concerns and an approach which is supportive (honestly). Yes, a business will have a grievance process, but is this the right approach and avenues for raising concerns which are often sensitive?

Being a passive bystander is not ok – through management and leadership behaviours, it is also important to encourage staff to be an active bystander, to raise concerns and also know that if they do, they will be listened too. This is not to say that every allegation raised might lead to disciplinary action being taken against an alleged perpetrator, but what it means is that colleagues won’t feel that issues are swept under the carpet. 

Lessons learned – another big part of the reasonable steps process is going to be around lessons learned.  So, if a concern has been raised previously, how did the business response? Did everyone close ranks as is often the case, or was there a willingness on the part of management to listen and learn? How effective are the steps or measures taken?

 

Many of you may be thinking that this all seems too much, at a time when there are already pressures on HR budgets and time. Let us help you with our Reasonable Steps Roadmap. Whether it’s updating policies, running training courses or undertaking a risk assessment, there are ways we are supporting HR teams and businesses to prepare. We look forward to hearing from you.


Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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If you have any questions relating to this article or have any employment matters you would like to discuss, please contact the Employment team.

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