Sexual Harassment

Sexual Harassment

THE NEW OBLIGATION TO PROTECT EMPLOYEES FROM HARASSMENT FROM ANYONE, (including members of the public).

As of 26 October 2024, new rules come into force obliging employers to take all reasonable steps to protect employees form sexual harassment when at work. This means stopping “banter” from customers, employees of other companies as well as your own staff.

The new regime means that any employer must take reasonable steps to prevent employees feeling harassed at work. The obvious application would be to protect bar staff from sexual jokes/banter/harassment from drunken customers, but in fact the real application of this goes much further and includes third party harassment. Harassment can occur in any workplace, and employers don’t always have direct control of the actions of employees of other companies.

For example, if you have a lorry driver visiting the site of another warehouse company, you now have duty to take reasonable steps to ensure no harassment is undertaken by the warehouse staff (even though they don’t work for you).

This new duty requires you as an employer to look into the future and try to anticipate what might happen in the form of sexual harassment. This is not a new idea, and has been accepted in terms of health and safety for years. That’s what a risk assessment is all about. So, you will be expected to perform a risk assessment of sorts.

Naturally there will be many employers who don’t embrace the new rules, and some may not be caught out because they will be lucky and no harassment will occur. However, those employers will be vulnerable to claims the very first time that an employee feels harassed at work, or claims to feel harassed, and the employer cannot show what they have done to try to prevent it.

To be clear, there is no standalone claim an employee can bring if steps aren’t taken. But if an employee is harassed on sexual grounds they can bring a claim which could lead to compensation being awarded (and that compensation is unlimited). If the employer cannot show that it tried to prevent it that compensation could be increased by up to 25%.

What should employers do?

The steps required are reasonable steps. This means the steps required will depend on the exact work environment.

We suggest the following as a start:

1. Document a risk assessment, covering things such as whether anyone has experienced harassment before, including third party harassment, perhaps a staff questionnaire would be useful in this regard
2. Identify risk areas between high and low risk and ask what additional steps you can take in high risk areas
3. Review your equal opportunities policy, or harassment policy if you have one and add third party harassment
4. Make sure there is a clear route published to all for reporting harassment, and even encouraging such reporting
5. Roll out equality training to managers, and refresh that training at least every two years.
6. Deal effectively with complaints and keep a record of this
7. Introduce a zero tolerance policy to harassment if you haven’t already
8. Add a term to your standard terms of business with other companies requiring them to cooperate with, and act in accordance with, any harassment investigations
9. Monitor and review the effectiveness of your policies.

The new regime begins on 26^th October 2024.

These will seem like unreasonable and draconian rules to some, but like all other employment protections this new approach will become the norm in a short space of time.  In view of the unlimited financial penalties that accompany the rules, our advice is to embrace the new regime sooner rather than wait for an expensive claim.

Trula Brunsdon – Partner and Head of Employment