Sexual harassment in the workplace: new law cracks down on risky businesses
Sexual harassment is conduct that has the purpose or effect of either violating dignity or creating an intimidating, hostile, degrading or offensive environment.
Legislation protecting workers from sexual harassment already exists and has been in place for many years. However, sexual harassment in the workplace remains a significant issue which tends to suggest that existing legislation simply doesn’t go far enough.
The fallout from such cases can be hugely costly and damaging from a reputational point of view for businesses and organisations, quite apart from the distress and anguish suffered by employees who have been at the receiving end of acts of harassment whilst simply going about their working day and doing their job.
In order to try to address this ongoing issue, in October 2024 we will see a significant shift in emphasis when the Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force. This new Act will require that organisations must take proactive, rather than reactive, measures to prevent sexual harassment. Employers will be expected to ensure they are adopting a zero-tolerance approach and make certain that all complaints of sexual harassment are properly investigated and resolved.
What does this mean for businesses?
This is a significant shift in emphasis and follows movements such as #MeToo which have become culturally significant in the UK and internationally. It is worth keeping in mind that an act can constitute harassment even if the intention behind it was not in any way malicious or deliberately unkind – so it is vital that businesses take positive steps to ensure that they have measures in place to prevent harassment and that they instil a strong message from the top down to ensure that staff understand exactly what constitutes harassment and know in no uncertain terms that it will not be tolerated.
This new law will put a much greater burden on businesses to ensure that their practices comply with law and put the wellbeing of staff in the forefront. It will not be enough simply having an anti-harassment policy gathering dust in a drawer and the occasional ‘tick-box’ training.
Currently, damages for harassment are uncapped, meaning that they can be substantial. Under this new legislation, Claimants who bring successful Tribunal claims for sexual harassment may be awarded an additional compensation uplift of up to 25%. This significantly ups the ante in terms of potential exposure to financial liability for businesses.
In addition, the Equality and Human Rights Commission will be able to enforce proactive policies where these have not been implemented.
Businesses should not underestimate the reputational damage caused by reports of sexual harassment in the workplace. So, from both a moral and a commercial standpoint, businesses must make policy changes and take this new legislation seriously.
What can businesses do?
In simple terms, businesses must be able to demonstrate that they have taken ‘reasonable’ steps to prevent harassment from taking place. However, ‘reasonable’ steps will look different to every business. The key theme will be that such steps will be practical, proportionate and tailored to each workplace.
It is advisable for employers to consider:
- Reviewing, updating, or where necessary creating harassment policies;
- Delivering regular and compulsory training to employees to reiterate expected conduct, what constitutes harassment, how to raise a sexual harassment report, and how to give those who witness harassment the means to safely intervene;
- Training managers on how to deal with a sexual harassment report;
- Ensuring clear and appropriate reporting mechanisms are in place;
- Taking all reports seriously and escalating them in an appropriate and timely manner;
- Providing adequate support for people who experience these kinds of behaviours by creating an open culture of communication through “workplace champions”; and
- Proactively spotting trends or risky practices and taking action to protect employees.
It is concerning that 40% of women experienced some form of sexual harassment at work, yet even more worrying that, according to a study by the Trade Unions Congress, sexual harassment impacts 68% of disabled women and LGBT workers. Policies, training and procedures should adopt an intersectional approach, recognising that workers with more than one protected characteristic will experience harassment at a disproportionate rate.
All in all, one of the most important things a business can do is listen to its staff. Whether it be a formal report of sexual harassment or a seemingly harmless rumour that touches on potentially serious topics, businesses must now start to put emphasis on their upcoming, proactive, duties.
What next?
Our team of experienced employment lawyers are already helping businesses and organisations prepare for the introduction of this new regime. We can advise on the steps that are right for your business in order to minimise the risk of liability arising when the new Act comes into force. Whether you just want some general guidance, or a more detailed, bespoke action plan, we can help. We can also provide training tailored to your organisation to help you ensure that your staff know exactly what is expected of them, and how to address complaints of sexual harassment should they arise.
