From October 2024, new legislation was enacted which requires employers to take “reasonable steps” to prevent the sexual harassment of their employees (Worker Protection (Amendment of Equality Act 2010) Act). The new law was primarily introduced to protect women but will apply to people of all genders. Tribunals are also being given the power to uplift sexual harassment compensation by up to 25%, so it is important to take steps now to ensure you don’t just react to allegations of sexual harassment but ensure that it doesn’t happen in the first place. The EHRC can also take action independently by:
- Investigating an employer
- Issuing an unlawful act notice, requiring an employer to prepare an action plan
- Entering into a legally binding agreement with an employer to prevent future unlawful acts
- Applying for an injunction to prevent an employer from committing an unlawful act
But what, exactly, constitutes sexual harassment? One employee’s idea of “harmless banter” can trigger great distress in someone else, and employee relationships outside the workplace may blur boundaries and encourage inappropriate behaviour. There can be a mismatch between people of different ages or social class who have different ideas of what is okay and what is not acceptable, and an accusation of sexual harassment can be deeply upsetting.
So how should you deal with these issues when they arise?
It’s true that legally speaking there is no definitive list of the kinds of behaviour that might be viewed as “sexual harassment,” but essentially, behaviour that another person experiences as a violation of their dignity, or that creates an intimidating, hostile, degrading or offensive environment for them, will come under the heading of “sexual harassment.” It could involve private messages sent via email or text, or a public conversation in which others join in, and run a gamut from relatively mild behaviour to extreme and outrageous.
We often find that in disputes between employees, or employees and customers/clients, there is a mismatch between the accuser’s experience and the intention of the accused. The important thing to remember is that the accused does not need to have intended to cause sexual harassment.
You should bear in mind it is the effect caused by the behaviour that is most important, and that is something you should stress in discussions or training sessions with employees.. Be aware that, whether your workplace is relaxed or more formal, boundaries need to be set and adhered to by all employees. Where those boundaries begin and end, however, may be a matter for negotiation and discussion.
There may be elements within your business that contribute to the likelihood of sexual harassment. The presence of alcohol either as part of the business (in a pub or club) or as part of workplace activities (office parties, weekend seminars) will be a risk factor and employees may need reminding of appropriate boundaries.
Is there a power or gender imbalance between staff? That can contribute to an atmosphere where one or a few people are singled out for unwelcome attention.
Taking Action
The EHRC has updated its guidance on sexual harassment and remains a good place to start.
By and large however, you should aim to have a culture where individuals feel able to express concerns openly and know that they will be taken seriously. You should offer support for anyone who feels they are being sexually harassed, and make it clear that such behaviour will not be tolerated.
As with many workplace issues, open discussions and training sessions will help your employees to be aware of their own behaviour and to monitor each other. It helps to focus on what might constitute “sexual harassment”(this may be something employees have not considered before) the ways in which people of all genders may experience sexual harassment, and what a zero tolerance policy might look like.
Anonymity for those reporting sexual harassment complaints may be a useful tool if employees are reluctant to express concerns but it can also mean that you do not have sufficient evidence to carry out a disciplinary or to challenge a Tribunal claim. Anonymous surveys can, however, be at the very least a helpful indicator as to whether there are deep rooted problems in the workplace culture, or whether a particular individual is causing issues.
How we can help is by preparing and drafting an effective Sexual Harassment Policy, helping you to undertake a Risk Assessment and helping you navigate and hopefully successfully resolving an allegation of sexual harassment if one has been made.