Pump Court Chambers

The new duty to prevent sexual harassment

News, Blog 31st October 2024

Fergus McCombie discusses the reasonable steps which are likely to meet the duty and impress an employment tribunal.

My colleague Louisa Simpson posted last week on the much-trailed preventative duty on employers to prevent sexual harassment, coming into force via s.40A of the Equality Act 2010. This follow-up article addresses practical steps towards compliance with the new duty.

At the risk of stating the obvious, the foremost policy objective is of course to prevent sexual harassment.  But as advisers and advocates in employment tribunal proceedings, we also perceive the evidential value of being able to retrace those compliance steps when it comes to arguing that the preventative duty has been met.

On 26 September 2024, the Equality and Human Rights Commission (EHRC) updated its non-statutory Guidance on workplace sexual harassment.  This is a valuable resource for employers, not least because tribunals are likely to look to such guidance in assessing a submission from a respondent that the duty has been complied with.

The following 8 areas for action range from the obvious to the less common, but all are worthy of comment.

Policy

Many advocates will have the experience of a management witness not having the first clue what a policy says even by the time of the trial, let alone at the time the policy should have been engaged with.  Even before the change in the law, it was unlikely to be enough simply to have a policy and to throw it into the trial bundle together with website-friendly references to taking equalities duties seriously.

On the other hand, the EHRC Guidance does not suggest that there has to be a separate sexual harassment policy in order to comply with the new preventative duty.  What is suggested is that sexual harassment should be treated as its own topic.

It is not unusual to see whistleblowing or bullying being treated separately in their own sections within a grievance policy, or seen as deserving of their own policies with appropriate definitions and examples.  In a regulated environment such as an FCA-registered firm, there are likely to be bespoke provisions for specific types of conduct reporting.

As a matter of policy drafting, it is now clear that the same type of approach to sexual harassment is well advised.  A revised policy on these issues could cover issues such as:

  • what will considered to be aggravating features in a sexual harassment allegation, for example an abuse of power, or if there is to be any distinction drawn between sexual touching and harassing words
  • third party sexual harassment
  • bespoke procedural steps in dealing with sexual harassment concerns or allegations
  • effective reporting and monitoring mechanisms in all areas of the employer’s operations.

 

Staff engagement

A tribunal should be encouraged to see the existence of a policy as more than a box-ticking exercise.  Some steps should be taken to ensure that a culture of prevention is embedded.  In part, this involves deterrence due to the likelihood of staff speaking up and speaking out.

Some suggestions are:

  • conduct regular 1-2-1s where these issues can be ventilated
  • run staff surveys
  • run exit interviews
  • have open door policies for reporting
  • ensure that staff training covers how to report sexual harassment.

 

Risk assessment

Most employers will be familiar with conducting risk assessments.  A number of clear risk factors present themselves:

  • where are the power imbalances?
  • is there a lack of diversity in the workforce?
  • is there job insecurity for a particular group or role?
  • are staff working alone or at night?
  • do staff have customer-facing duties?
  • are customers or staff drinking alcohol?
  • are staff expected to attend external events, conferences or training?
  • do staff socialise outside of work?
  • do staff engage in crude or disrespectful behaviour at work?

 

Reporting

Reporting sexual harassment should be easy, and anonymous or confidential when necessary.

It should be emphasised as a remedy available to all who witness relevant behaviour, not just something left as a matter of the victim’s discretion.  Many employers have employee assistance programmes for general wellbeing matters – it is not a big step beyond that to have an online or telephone-based reporting service.

The policy and training measures adopted ought to enable staff to recognise sexual harassment when it perhaps less obvious, so that they are in a position to report it.

Finally on this topic, keeping records of all concerns raised, whether formal or informal, anonymous or otherwise, is likely to be seen as important in the overall self-monitoring effort.

 

Training

All workers, including managers and senior staff, should be trained on:

  • what sexual harassment in the workplace looks like
  • what to do if they experience or witness it
  • how to handle any complaints of harassment.

In industries where third-party harassment from customers is more likely, workers should also be trained on how to address these issues.

The effectiveness of training should be reviewed, with refresher sessions at regular intervals.

 

Complaint-handling

The important issue evidentially, on the narrow issue of the preventative duty, could well be a focus on the confidence workers are likely to have in the procedures.  It is hard to see how the particular circumstances of handling the complaint in question before the tribunal could work for or against preventing that sexual harassment from having occurred in the first place, except in so far as it can be argued to be evidence pointing towards or away from a preventative culture.

With that in mind, a tribunal is likely to be unimpressed by a delay in handling complaints.   Equally, care will need to be exercised in all directions, as the following points illustrate.

  • The victim’s view of how a complaint should be resolved is bound to be relevant, at least to the procedure adopted and quite possibly to any sanction.
  • The confidentiality of all parties should be respected.
  • Complainants will need to be assured of protection from ongoing harassment or victimisation during an investigation. Could the alleged harasser be moved to another team or site?  Or work from home?  If, under the procedures, such a measure is provided for, then for the purposes of the preventative duty it may matter less whether the option has or has not been exercised in the particular complaint in question.
  • Similar provision for the protection of other witnesses can be made.
  • A worker making a complaint of harassment that may be a criminal offence could be spoken to about whether they want to report the matter to the police and supported if they go ahead.
  • Confidentiality agreements or NDAs should be used with care and only where lawful, necessary and appropriate.

It is also of note that the Employment Rights Bill (clause 18), most of which is out for consultation, proposes to expand the list of the relevant subject-matter for qualifying whistleblowing disclosures in s.43B of the Employment Rights Act 1996 to include sexual harassment.  In other words, giving “information” (within the terms of that section) about sexual harassment will automatically lead to whistleblowing protection.  Although this is arguably an unnecessary addition, given current law, it emphasises that a badly-handled sexual harassment complaint opens the door to a claimant’s argument that they have suffered whistleblowing detriment or automatically unfair dismissal.  A claim immediately becomes more complex, more costly and potentially more difficult to defend, given that the causation test for whistleblowing detriment under the Employment Rights Act is subtly different from that under the victimisation provisions of the Equality Act.

 

Harassment by third parties

An adequate risk assessment will cover off the likelihood of harassment by a third party.  The action steps to fend off this risk should form part of the overall package of preventative measures, including the reporting and monitoring mechanisms put in place to re-calibrate the assessment, if necessary, and to take steps which address the risk in a bespoke manner for third-party instances.

In short, third party risks and incidents should be taken as seriously as internal ones.  The hospitality sector in particular should take note.

 

Monitoring and evaluation

A tribunal is likely to be impressed by convincing evidence that the preventative steps are well-monitored and that there is a responsive process of improvement.  This need not amount to a reaction to incidents that have already been complained of.  A change in office layout, or to the duties of a team, or to customer-facing responsibilities – all those things which have been suggested as being of relevance to policy and to risk assessment – could cause a general review under the preventative duty in addition to any systematic periodic refresh of policy and training.

By way of more specific example from the Guidance:

  • review informal and formal complaints data to see if there are any trends or particular issues
  • survey staff anonymously on their experiences of sexual harassment, or witnessing and reporting (or not – if not, then why?)
  • compare reported complaints with survey feedback
  • hold “learnings” sessions after any specific issues
  • consult with workers or representatives, including trade unions where relevant, to seek input on changes.

 

And finally …

As I’ve suggested in the introduction to this post, the policy aim of eliminating sexual harassment from the workplace is distinct from the issue which arises in litigation of taking the legal test and marshalling the evidence to satisfy it.  The latter exercise has probably become significantly more difficult in the area of sexual harassment – although we await the first cases on the subject.  In the meantime, the well-advised employer takes the steps suggested here with a view to protecting its staff and ultimately itself.

 

Fergus McCombie

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