All employers need to be aware of the new duty to take preventative steps to ensure workers are protected against sexual harassment in the workplace. In the event of defending a sexual harassment claim in the employment tribunal, employers need to demonstrate that all ‘reasonable steps’ were taken to avoid sexual harassment
Sexual harassment is unwanted behaviour of a sexual nature, which must have either violated someone’s dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for someone. It can be sexual harassment if the behaviour has one of these effects even if it was not intended, or intended to have one of these effects even if it did not have that effect.
Sexual harassment can be anything from an innuendo or jokes to more extreme acts of sexual assault or rape. What one person thinks is friendly banter, another could deem sexual harassment, and an office flirt can quickly cross one person’s boundaries. Other examples are:
- touching someone against their will, such as hugging them;
- making sexual remarks about someone’s body, clothing or appearance;
- asking questions about someone’s sex life;
- making sexual advances;
- displaying or sharing pornographic or sexual images, or other sexual content.
Whether an employer has taken ‘reasonable steps’ to avoid sexual harassment in the workplace is an objective test and will involve assessing the size and resources of the organisation, the nature of the working environment, the industry, the risks present, and any regulatory standards.
Here, there are eight simple steps to help employers comply with this preventative duty:
- Undertake a risk assessment;
- Develop an effective anti-harassment policy;
- Ensure staff are aware of the policies and processes;
- Implement a reporting system where complaints are recorded;
- Offer regular, be-spoke Training to all workers at all levels;
- Investigate complaints;
- Deal with harassment from third parties; and
- Monitor and review the steps in place on an ongoing basis.
Here, we focus on what employers need to do to undertake an effective risk assessment.
Organisations should assess the workplace for potential risks and think about what steps they can take to mitigate such risks with the aim of creating a safer and more respectful work environment. By carefully evaluating these conditions, employers can identify high-risk areas and take proactive measures.
Undertaking a risk assessment should be the priority for compliance with the preventative duty. It should involve considering working practices and identifying where and when sexual harassment may take place, auditing policies and training, considering exit interviews, resignations and grievance patterns, and putting steps in place to address issues and prevent recurrence.
Five key areas for risk assessments are:
Reflect on the working environment
The workplace is broadly defined and can capture site visits, work social events, away days, travel. Consider the conditions under which sexual harassment may be more likely:
- Shared office space;
- Lone/isolated working, including working from home;
- Night-working;
- Work-related travel in the UK and overseas;
- Close contact of any type (whether that is a crowded environment, personal care or otherwise);
- Any environment where alcohol is present; and
- Interaction with third parties, such as clients, customers, and the public.
Consider the types of people placed in these environments
Certain people, groups and relationships can impact risk:
- Power imbalances: one person can have more power for a variety of reasons including age, seniority or length of service.
- Vulnerable groups: people more likely to be at risk may be probationers, fixed-term or agency staff, and junior staff.
- Lack of diversity: statistically women are more likely to be harassed by men, so predominantly male workforces can be risk areas.
- Third party interactions: staff who deal with customers, clients or members of the public, such as at front of house, social events and conferences need to be considered.
- Review reporting infrastructure in place and barriers to reporting
Barriers to reporting, such as fear of retaliation, a lack of trust in the reporting process or uncertainty about what qualifies as inappropriate behaviour, can discourage employees from coming forward. Employers should assess whether current reporting channels are accessible, confidential and trusted by employees.
Training
Inadequate training may leave employees unclear about what constitutes harassment or how to report it properly. Strengthening training programmes and improving the reporting process are key steps in fostering a culture where employees feel safe and supported in speaking up about any incidents they encounter.
Monitor trends within your organisation and have an action plan
Implementing a monitoring system and action plan to address sexual harassment trends within an organisation is essential for fostering a safe and respectful workplace. Regularly tracking and analysing data on reported incidents allows employers to identify patterns or areas of concern. Management should be accountable for taking prompt action.
Be mindful of data privacy requirements
When handling sensitive information from reports, surveys and, crucially, records of historic complaints, employers must ensure that data is collected, stored and processed in compliance with privacy rules. Safeguarding personal data and respecting confidentiality, can encourage open communication without compromising employee privacy.
Mitigating risk
Start by reviewing existing policies and ensuring they are comprehensive and effective. Identify any gaps where there is a risk and develop an action plan with clear timelines and assigned accountability for implementation.
You may need to change or improve practices that are risky, such as limiting alcohol at events or the time events end, introducing policies addressing relationships at work, and minimising isolated working where there are other risk factors at play. Often, a culmination of many factors leads to an unsafe environment. By addressing these areas with urgency and accountability, organisations can significantly reduce the risk of harassment and create a safer, more inclusive work environment.
Get in contact with an employment lawyer at Rowberry Morris
If you would like advice or need further guidance on this or any employment issue, please contact the Employment Team at Rowberry Morris by phone on 01189812992 or email at employment@rowberrymorris.co.uk, or at rowberrymorris.co.uk/services/employment-law