New Duty to prevent sexual harassment in the workplace
It goes without saying that everyone has a right to feel comfortable and respected at work, and we hope that is always the case. Since the recent amendment of the sexual harassment bill, it brings with it a new responsibility for Employers to provide concert efforts to prevent sexual harassment in the workplace.
The Worker Protection (Amendment of Equality Act 2010) Bill is currently progressing through parliament, but the government has responded to the consultation on sexual harassment in the workplace.
The new duty outlined organizations must take “all reasonable steps” to ensure that sexual harassment is prevented in the workplace. This extends to any third parties within the workplace.
The definition of what reasonable steps look like is not yet clear, nor when employees can bring a claim that sexual harassment is not being prevented by their employer or after sexual harassment has occurred. However, more clarity on this is expected in due course.
For organizations to avoid liability relating to harassment and discrimination utilizing the reasonable steps defense they must be able to show they took all reasonable steps to prevent discrimination from occurring. Organizations who are unable to show the reasonable steps they have taken to prevent discrimination are ‘vicariously liable’ for the actions of their employees (and agents).
Liability is applied to anything that happens “in the course of employment”. This can be related to events beyond the actual working day, or outside of the workplace - such as office parties, conferences, and other work gatherings. Although it is expected that this new duty will go beyond this, a possible “reformulation” of the law, transparency is required on this and the compensation award related to any successful employment tribunal claim.
The Equality and Human Rights Commission is expected to be given more support to enforce this new duty, take strategic action, and “impose legally binding agreements” on offending organizations. It will look closely at extending the time limit for bringing Equality Act-based cases to a tribunal from three to six months.
The Commission will also create a statutory code of practice to help organizations with compliance.
What this means for your organization
You need to start preparing to make updates to your existing policies for discrimination and harassment. Making these preparations sooner rather than later will ensure when the new duty comes into effect you are ready and prepared.
Whilst we still have to wait for further guidance to comprehend the extent of the changes and policies needed, taking proactive measures now will reduce the risk of costly tribunal claims ahead.
Steps you should be taking now
Review your current policies and procedures. Ensure you have a clear zero tolerance stance on sexual harassment and rules on acceptable workplace behavior. Utilizing an anti-harassment policy will ensure that all employees are informed of the rules and what employees should do if they are concerned about behaviors they have witnessed or experienced within the workplace.
The policy can include a list of behaviors the organization will regard as harassment, and the procedure that will be followed once concerns are raised. The consequences of carrying out sexual harassment at work should also be outlined to deter employees from carrying out this behavior.
Regular training on sexual harassment
Based on the policy, you should provide training to all employees. Ensuring the training is assessable to everyone and refreshers are provided – this should not be done once and forgotten about. All new starters and workers should be provided with this training. Not only should the training outline the policy but should empower employees to feel comfortable raising concerns and supporting each other. It’s imperative that employees understand the confidential and sensitive manner in which any claims of harassment or discrimination will be handled and that any allegations of this nature are taken seriously. Training should also include how to spot incidents of sexual or any other type of harassment.
The previous culture of silence needs to be tacked and signposting the policy and providing inclusive regular training is the first step towards making employees feel comfortable reporting these situations. No allegation should be ignored or dismissed based on a manager’s perception of the matter. Every allegation should be fully investigated and disciplinary action is taken where necessary.
Providing training to a manager on how to sensitively handle discrimination and harassment claims, investigations, communication, and ongoing support to employees should be provided alongside the training on sexual harassment. With this, consider the plan for after a sexual harassment allegation has been investigated and concluded fully. Just because an outcome has been delivered doesn’t mean the employee will feel the matter is resolved and behind them. Ensure Employee Assisted Programmes are provided, offer additional welfare support, consider time off for them to seek professional help and support, and signpost them to confidential support programs.
Third Party Harassment
The Worker Protection Bill will also re-introduce the liability for employers for harassment of their employees by third parties, such as clients or customers, where the employer fails to take all reasonable steps to prevent harassment. Taking steps now to tackle this, rather than waiting for legal change, should help to avoid the issues outlined above.
Failure to adequately address inappropriate behaviors and creating a culture that does not facilitate diversity and inclusion can prove detrimental for organizations; those who don’t may risk tribunal claims, high turnover, and reduced productivity.
Sexual harassment in any institution is a difficult subject for anyone. We hope this advice helps give confidence to both employers and their employees, empowering you to feel everything possible is being done to prevent sexual harassment in the workplace.
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