What are my responsibilities regarding sexual harassment in the workplace?

The Government has recently published its response to a consultation it conducted on sexual harassment in the workplace. This consultation found that workplace sexual harassment is still a significant problem in our society and in response the Government has proposed several reforms it believes will help address the problem. Our Employment Law team discusses some of these proposals and what they mean for employers.

New duty to prevent harassment in the workplace

Currently, employers may be liable for incidents of sexual harassment that occur in the workplace unless they can show they have taken “all reasonable steps” to prevent them.

The Government now proposes placing a new, proactive duty on employers to take all reasonable steps to prevent sexual harassment in the workplace. This new duty would emphasise the importance of taking preventative measures by making employers liable even before an incident of harassment has occurred, though it is not yet clear whether an incident of harassment will need to have occurred for an individual to make a claim. The Government believes that this new duty will motivate employers to take proactive measures to protect their workforce from harassment. 

Third party harassment in the workplace

The Government has also committed to introducing protections for employees against third party harassment. Details of these protections have yet to be published, but should protect employees from harassment from customers, suppliers, and other visitors to the employer’s premises.

Previous protections against third party harassment, which were abolished in 2013, operated according to a “three strikes” rule which meant that the employer would only be liable for the harassment if two previous incidents had occurred. It is not clear yet whether under these new protections an incident of harassment will have had to occur before an employer becomes liable. The Government has said that employers will be able to defend against claims of third party harassment by showing they took “all reasonable steps” to prevent the harassment.

What does “all reasonable steps” mean?

The Government has declined to state explicitly what would constitute “all reasonable steps” saying that doing so would remove “flexibility to take a proportional approach based on the individual circumstances of the workplace.” Therefore what constitutes “reasonable steps” will depend on your business’s unique circumstances such as:

• the size of your workforce;
• the cost of preventative measures;
• the resources available to your business.

The Equality and Human Rights Commission (EHRC) is expected to produce a statutory code of practice to complement the technical guidance on sexual harassment and harassment at work that was published by the EHRC in January 2020. This code of practice may provide some clarity to employers on what constitutes “reasonable steps.”

How can I prepare for these changes?

The Government has said these changes will be made “when parliamentary time allows” and, as discussed above, the details of many of these proposals still need to be worked out. There are however, some steps you can take to prepare for future changes to the legislation.

You should have an up to date anti-harassment policy, which includes a procedure for reporting and investigating alleged incidences of harassment. As employees start to move back into the workplace, this may also be an opportune time to remind them of this policy and of your organisation’s standards on acceptable workplace behaviour.

You may also want to consider offering anti-harassment and equality and diversity training to your workforce, and if you already offer such training, review whether it is still fit for purpose. If it has been a while since your employees have received such training, a refresher course may be necessary to ensure that the training does not become “stale.”

You could also take preventative measures against third party harassment such as clearly displaying notices in the workplace stating that harassment of any kind will not be tolerated, and including anti-harassment clauses in your supplier agreements.

If you have questions about how to handle an allegation of harassment or need help drafting an anti-harassment policy, contact our Employment Law team on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.