Sexual harassment legislation - a roadmap for employers

The Worker Protection (Amendment of Equality Act) Act 2023 places employers under a new legal obligation to take proactive and preventative steps to protect their staff from sexual harassment in the workplace.

Simply put, rather than reacting or responding to incidents after they occur, employers are now expected to implement a range of measures designed to minimise the risk of sexual harassment occurring in the first place.

Louise Cossar, Senior Employment Law & HR Advisor at Mentor, shares her top tips on the steps employers should be taking to comply with the new sexual harassment legislation.

What actions should employers be taking?

Carry out regular risk assessments

Traditionally, a health and safety tool, risk assessments are new territory in employment law. The Equality and Human Rights Commission (EHRC) have published updated technical guidance on preventing sexual harassment in the workplace. This guidance states –

“Employers are unlikely to be able to meet the requirement of the preventative duty to take reasonable steps to prevent sexual harassment of their workers, if they do not carry out a risk assessment.”

Risk assessments should therefore be a top priority for employers. These assessments allow organisations to identify areas or situations where workers may be more vulnerable to inappropriate behaviour. Some factors which may increase the likelihood of sexual harassment could be power imbalances, a lack of workplace diversity, interactions with third parties, lone-working, night-working, exposure to alcohol, external events, socialising or social media contact.

By proactively evaluating these risks, employers can implement targeted measures to mitigate them, such as increasing supervision, providing additional guidelines or adding additional training.

Have an up-to-date anti-harassment policy

Employers should have implemented or reviewed their anti-harassment policy. This may mean having separate policies for sexual harassment and other forms of harassment or a single policy covering both. The policy should -

• outline the organisation’s zero-tolerance stance on sexual harassment
• include examples of what could amount to sexual harassment
• cover rules on third-party harassment and what steps have been taken to prevent and remedy this
• provide a commitment to carrying out regular reviews across all areas of the business, including overseas sites
• outline the procedure for receiving and responding to harassment complaints.

It is essential that the policy is communicated effectively to all staff, as this will ensure that the entire workforce is aware of their rights and responsibilities, the reporting procedure and any consequences of breaching this policy.

Promote staff engagement and awareness

Staff engagement plays a crucial role in addressing and preventing sexual harassment in the workplace. Employers should be encouraging open communication with workers through regular 1:1s, staff surveys and exit interviews. By actively listening to staff speaking about their experiences and concerns, organisations can foster a culture of trust and address any gaps in their approach.

Deliver additional training

Training is a critical component of combating sexual harassment in the workplace. All workers, including senior staff, should receive comprehensive training on what constitutes sexual harassment and how to recognise it. This training should provide staff with the tools required to respond appropriately if they experience or witness sexual harassment. For managers and leaders, additional training will be required to ensure that there is awareness of how to address any complaints of sexual harassment sensitively and effectively.

Implement effective reporting procedures

Employers should be implementing an effective reporting procedure for managing complaints of sexual harassment. Workers need a clear and concise process to report concerns without any fear of reprisal. A strong procedure should outline various reporting channels to allow workers to feel comfortable coming forward regardless of whom the allegation is against. Employers should also consider using a reporting system that allows workers to raise issues anonymously, when needed. The procedure should detail how complaints will be investigated and outline any confidential measures that may apply.

Deal effectively with sexual harassment complaints

If an employer finds itself in the position of receiving a complaint of sexual harassment, it’s natural to feel stressed or concerned. It’s crucial to act swiftly, ensuring that the complaint is addressed without any unnecessary delay. Maintaining confidentiality throughout the process is essential to protect the privacy of all parties involved and to maintain trust in the reporting procedure and organisation.

Providing support to the person who raised the complaint, and anyone else affected, is equally important. This may involve offering access to counselling services or supporting workers if they report the matter to the police.

Once the investigation is complete, the outcome and appeals process should be communicated, ensuring that they understand the specific actions that have been taken.

What are the consequences of non-compliance?

Employers who don't take reasonable steps to prevent sexual harassment could face the following risks:

• Action by the Equality and Human Rights Commission (EHRC)

The EHRC could take enforcement action against employers who don't take reasonable steps to prevent sexual harassment.

• Vicarious liability

Employers can be held responsible for the actions of third parties.

• Employment tribunal claims

Workers who believe that they have experienced sexual harassment may choose to bring claims of discrimination to employment tribunals.

If an employee feels they have no choice but to resign, an employer could also face a claim of constructive dismissal.

• Increased compensation

Employers could have to pay a higher rate of compensation of up to 25% more if an employee makes a successful claim at an employment tribunal.

Looking ahead

As employers navigate these new rules to ensure compliance, ongoing proactive measures should be taken to maintain effectiveness and adapt to evolving workplace needs.

• Monitor and evaluate actions. Regularly review informal and formal complaints data to establish any trends, issues or appropriate actions.
• Conduct anonymous staff surveys to gather any experiences of sexual harassment. This may provide insights into perceptions of workplace culture and the effectiveness of preventative measures.
• Periodically review and evaluate policies, procedures, and training. Always seek input and feedback from workers or their representatives.

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