From October 2024, employers have a duty to take reasonable steps to prevent sexual harassment in the workplace. With guidance from the Equality and Human Rights Commission (EHRC) not expected until September, Matt McBride in the Employment team at Freeths explains what you can do to prepare.
The issue
While sexual harassment is not exclusively men harassing women, in the majority of reported cases it is. A 2021 survey by the Fawcett Society found that 40% of women experience sexual harassment during the course of their career. A TUC survey in 2023 reported that 62% of women aged 18 to 34 said they experienced sexual harassment, bullying or verbal abuse at work and that 70% of women who experienced sexual harassment in the workplace did not report it.
The new duty
From 26 October 2024, employers have a duty to take reasonable steps to prevent sexual harassment in the workplace. The duty at the moment only applies to sexual harassment, not other forms of discriminatory harassment.
The consequences for employers
There’s no standalone claim an employee can bring against an employer for a failure to carry out its duty. However, if an employee is sexually harassed, brings a claim and is successful, the tribunal can increase compensation by up to 25%. The EHRC can alsoinvestigate employers and enter into legally binding agreements with employers, committing them to take steps to comply.
The problem with training
The numbers of women reporting experiencing sexual harassment at work has remained fairly constant since the 1980s. A study reported by the Harvard Business Review suggested that training may make men feel defensive and, as a result, subconsciously less likely to believe claims and uphold complaints. This in turn results in fewer complaints and unchanged behaviour.
Better training: creating the right culture
The in-person training that Freeths delivers to clients puts building a positive culture front and centre. That includes:
- Role modelling and having good examples at leadership level: This can include workplace champions or leaders visibly participating in events or supporting initiatives.
- Allyship: Rather than a hands-off attitude to sexual harassment, this means cultivating a supportive environment. This applies to all elements of discrimination, not just sexual harassment.
- Bystander intervention: By encouraging bystanders to call out harassment when it occurs, you create a culture where raising complaints is not viewed negatively and so start to address the problem of underreporting. Bystander intervention isn’t necessarily always standing up and telling someone to stop, it can be reporting an incident or talking to the person who’s experienced harassment.
The right reporting mechanisms
Make sure that your reporting mechanisms are fit for purpose. Complaints of sexual harassment are difficult to deal with. Do you offer specific training? Do you have a separate procedure for sexual harassment complaints or do you use the grievance procedure?
Does your reporting mechanism offer support to both the person raising a complaint and the person alleged to have sexually harassed that person? Does the process seek a resolution? Do you have records of whether complaints are upheld? If the EHRC asks you to show you have taken reasonable steps to prevent sexual harassment, monitoring will help to give you the evidence you need.
Don’t be afraid of upholding complaints
Sense check your approach. Does it deal with complaints meaningfully and therefore encourage people to report wrongdoing? Employers can find it very difficult to uphold complaints of sexual harassment and to say sorry for it. Employers need employees to raise complaints when harassment happens, because they can then deal with the issues, and manage and improve the culture within the workplace.
Take a risk assessment approach
If there’s a 40% chance someone’s going to experience sexual harassment at work, there’s an argument that you should take a similar risk assessment approach as you would if there was the same likelihood of a health and safety incident. Identify any higher risk areas; individuals who work irregular hours are at greater risk of sexual harassment and claims tend to arise where there’s an imbalance of power. If you have areas of higher risk than others, what is your business doing?
