WORKER PROTECTION ACT
1. WHAT IS HARASSMENT?
The legal definitions of sexual harassment are set out in the Equality Act 2010.
Sex-based harassment is unwanted conduct “related to sex”, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual. For example, making derogatory jokes about women in front of a female Employee, or bullying behaviour towards an individual that is based on their sex.
There is also a specific definition of sexual harassment, which is unwanted conduct of a “sexual nature” which has this purpose or effect. For example, touching a colleague without their consent, or sending sexual jokes or pictures in the workplace.
It is also harassment to treat someone badly because they have rejected or submitted to unwanted conduct that is of a sexual nature or related to sex. For example, failing to promote an Employee because they refused a manager’s sexual advances.
Note that a one-off incident can count as harassment. There does not need to be an ongoing course of conduct.
2. WHAT IS UNLAWFUL HARASSMENT?
It is unlawful to sexually harass an Employee or a job applicant. The definition of “Employee” is wide and includes agency workers and self-employed individuals.
It is also unlawful victimisation to treat someone badly for raising reports about sexual harassment or helping others to do so, even if those reports turn out to have been incorrect.
An Employer is liable for sexual harassment carried out by Employees in the workplace unless they can show that they have taken all reasonably practicable steps to prevent this from happening.
In practice this is an incredibly difficult defence to rely on.
It is not enough to simply have an anti-harassment policy. Employers are expected to actively follow their policy, train Line Managers and relevant Employees on it, and react promptly to any indication that an Employee is being harassed.
The individual Employee who committed the harassment is also personally liable.
At this time an Employer is not liable for sexual harassment committed by third parties such as visitors, guests, etc. However, an Employer might be found guilty of subjecting an Employee to harassment themselves if they are aware that an Employee is being sexually harassed by a third party, but they do nothing to protect them.
This might also be direct discrimination (if the Employer protects certain groups but not others), indirect discrimination (if the policy of doing nothing particularly disadvantages women), or grounds for an Employee to resign and claim constructive unfair dismissal.
Employers should note that the new duty under the Worker Protection Act 2023 to take reasonable steps to prevent sexual harassment also includes harassment by third parties.
The Equality and Human Rights Commission (EHRC) also has updated guidance on sexual harassment and harassment at work to support the existing Code of Practice on Employment, which covers all types of harassment.
A failure to follow the Code of Practice will be taken into account by tribunals or courts in harassment cases. The guidance sets out detailed practical steps that Employers ought to take to prevent harassment in the workplace.
3. THE DUTY TO PREVENT SEXUAL HARASSMENT
From 26 October 2024 (under the Worker Protection Act 2023) a new duty means Employers must take “reasonable steps” to prevent sexual harassment of their Employees in the course of their employment.
This applies to sexual harassment which consists of unwanted conduct of a “sexual nature”. Although the law has primarily been introduced to protect women, it applies equally to people of any gender.
In addition to these changes, over the coming years the Employment Rights Bill will bring about legislation to ask Employers to take ‘all reasonable steps’ to prevent sexual harassment. Such a change will require consultation and further legislation which is not in place yet.
A claim for breach of the new preventative duty under the act can, in certain circumstances, be made in the Employment Tribunal. If an Employee succeeds in any claim for harassment which involves an element of sexual harassment, and the Employer is found to have breached this preventative duty, the Employment Tribunal will be able to increase compensation by up to 25%. The increase can be applied to all of the compensation that has been awarded for any type of harassment, and it is not capped.
The duty can also be enforced by the EHRC under its existing powers of enforcement which include investigations. As this law is new, it is not clear what an Employment Tribunal will see as ‘reasonable steps’. It is wise to assume that the Equality and Human Rights Commission (EHRC) guidance will be taken into account, so Employers should try to follow their practical steps on preventing harassment.
These steps include considering the risks of sexual harassment occurring in the course of employment, what steps can be taken to reduce those risks, considering which of those steps it would be reasonable to take and then implementing them.
What the EHRC guidance does makes clear is that what is ’reasonable’ will vary from Employer to Employer and that whether or not reasonable steps have been taken is an objective test that depends on the facts and circumstances of each situation.
The key point to note about the new preventative duty is that it is intended to be anticipatory – so employers should take action to stop sexual harassment before it happens and, if it does happen, should take action to stop it from happening again.
4. TAKE A PROACTIVE APPROACH TO PREVENTING SEXUAL HARASSMENT
Compliance with any legal protections relating to sexual harassment is vital, but Employers need to go further if they are to take a prevention-based approach.
Preventing sexual harassment requires more than a robust policy and training, it needs a culture centred on ethical values, modelled by its leaders, implemented by Line Managers.
Mitigating risks
Employers should assess risks relating to sexual harassment. Factors to consider when conducting such risk assessments could include:
out of hours working
remote working
the presence of alcohol
whether sections of the employed/voluntary/trusteeship areas of the Employer are dominated by a particular gender
power imbalances between Employees
attendance at events outside of the usual working environment, for example, training, conferences or work-related social events
social media contact between workers.
Leaders acting as role models
Preventing sexual harassment relies on leaders modelling professional, inclusive and respectful behaviour. Leaders should:
set the tone for the climate and culture and, behaviourally, must lead by example.
In doing so they set the standard within the Employer’s business.
be central to communicating that any form of unfair treatment such as sexual harassment will not be tolerated, and consequences will be applied.
have and maintain oversight of relevant policies and monitor their impact.
commit to and take active steps to tackle gender inequality.
It is of significant important that any action should empower, rather than limit, opportunities for those potentially vulnerable to sexual harassment.
Promoting positive values of dignity, respect and inclusion
Preventing sexual harassment means placing people at the centre of a culture built on the principles of dignity and respect. We must all act on ethical values and ensure that they are reflected in our systems and processes.
Fostering an inclusive and psychologically safe climate
The working climate is one of the most important factors for helping to prevent sexual harassment and encouraging people to speak up if they experience or witness it.
Environments that are male-dominated, or with a more overt power imbalance between the sexes, as well as those that reinforce competition or traditional gender norms have a higher prevalence of sexual harassment.
Although dealing firmly with alleged individual perpetrators is key, this needs to be based on a culture of treating everyone with respect, dignity and fairness. By bringing together and listening to voices that might be diverse in opinion we can ensure effective and inclusive culture change.
Ensuring Line Managers are capable and confident
Line Managers play a pivotal role in fostering a working climate that prevents sexual harassment and challenges any form of unfair treatment.
As well as acting as role models for fair and inclusive treatment, they are key to spotting and addressing inappropriate behaviours or exchanges between Employees.
To do this they need to have the knowledge to recognise sexual harassment when they see it and the confidence to intervene early. This means understanding the appropriate routes for resolution and when informal or formal methods can be used to best effect.
Training and educating the workforce
Training and education for Employees and Line Managers will increase knowledge of what constitutes sexual harassment, as well as how to spot and report alleged incidents. We should remember though that whilst training is important it does not necessarily influence behavioural change.
Therefore, training should be implemented as part of a broader prevention strategy that provides ongoing reinforcement of the Employer’s values.
Active policy development
An anti-sexual harassment policy should clearly outline the Employer’s approach for preventing and managing sexual harassment for all stakeholders and include the following:
A definition of sexual harassment and examples of unacceptable behaviour.
The responsibilities of Employee groups such as Line Managers to tackle sexual harassment.
A clear and confidential procedure for reporting incidents and how these will be dealt with fairly and promptly.
What support will be provided to victims, alleged perpetrators and bystanders, or witnesses, of sexual harassment.
A process for reporting statistics on policy use and impact to the District on a regular basis to monitor the workplace climate and incidents of sexual harassment, and to encourage a continuous improvement approach.
It is encouraged to consult with all stakeholders during the development of policy and process, affording everybody the opportunity to provide feedback.
5. HOW TO DEAL WITH ALLEGATIONS
The priority when dealing with reports of sexual harassment is ensuring Employees, and others, are not at risk of harm.
However, it’s important to remember that in the interests of fairness and natural justice, alleged perpetrators should also be treated fairly throughout an investigation.
All reports, whether received formally or informally, should be treated seriously. Those involved should be reassured that the matter will be dealt with fairly, sensitively and as quickly as possible. Reluctance to report can be a significant barrier therefore reports should be welcomed as opportunities to protect Employees and improve culture, rather than attempting to cover up the issue.
6. APPROACH FOR DEALING WITH REPORTS
All reports should be taken seriously and dealt with promptly, fairly and as confidentially as possible. However, there may be instances where the disclose of information to others is necessary, such as the police, for the purpose of protecting individuals.
This should be undertaken in consultation with the complainant as far as possible.
Sexual harassment should be recognised as a particularly complex and sensitive issue, and it might be most effective for an Employer to cover it in a standalone policy. Others might determine that the most effective approach is to include it as part of a general bullying and harassment policy.
What is clear is that there is not a one-size-fits-all approach and what works best for the individual Employer should be implemented. If neither of these options are in place at the point of receiving a report, Acas guidance on discipline and grievance should be followed.
Step 1: Receiving the report
You should make the reporting process clear and straightforward.
As well as a formal reporting procedure, given the sensitive nature of sexual harassment issues and the courage that it is likely to take for someone to come forward, it is good to have more than one reporting channel available.
This might include making it clear who an individual can approach informally, via a named and recognised person who has perhaps undertaken relevant training.
You could make available a confidential reporting channel, such as through a contact form on your website which assures anonymity.
It is wise to provide more than one reporting route to avoid situations in which someone implicated in sexual harassment is a default part of the reporting process.
Step 2: Assessing the report
A trained and impartial person should make an initial assessment of the report, such as a manager not involved in the situation.
This should focus on the alleged incident and consider the reported behaviour in the context of the anti-sexual harassment policy. This assessment should be made regardless of whether it is believed that the issue could be resolved informally.
Although reports usually focus on the individuals involved, they are often symptomatic of broader cultural issues.
Awareness through reporting should lead to action that supports the prevention of future incidents. Specialist advice could be obtained at this stage, if necessary, especially if the issue is particularly serious and potentially criminal.
The person making the report should be protected from further instances of sexual harassment or reprisal and any action taken should not have a detrimental impact on the individual making the report.
If the risk to others means that immediate action needs to be taken against the person(s) implicated in the report, this should be in line with procedure and not pre-empt the outcome of the following steps.
You must remember that we are governed by law and Employers must think carefully before suspending someone accused of sexual harassment. Acas offer relevant guidance on handling complaints of sexual harassment.
There should be no presumption of guilt on the part of the alleged perpetrator until the investigation and any formal procedures conclude, and they should also be treated fairly and given support where needed.
Step 3: Investigating the report
At all stages, any relevant parties (including the person making the report and the alleged perpetrator) should be kept informed of how the investigation is progressing.
Although dealing with sexual harassment should be distinct from the normal discipline and grievance processes, it should on every occasion follow Acas guidance on fairly conducting an investigation.
It may be possible to resolve the issue informally, such as through mediation. Acas advises that this is suitable in cases of minor misconduct. With the support of people professionals and accredited mediators, managers can deal with this sensitively by separately consulting each person involved and reaching an agreeable solution.
However, nobody involved should be pressured to take this option.
If the facts established via the investigation determine that there is a disciplinary case to answer then a formal meeting should be arranged as soon as possible, adhering on every occasion to Acas guidance on disciplinaries and grievances.
Evidence relevant to the case should be gathered and presented to the Employee at the formal disciplinary meeting.
The Employee facing the disciplinary hearing should also be supported in exercising their rights in relation to the meeting. This includes allowing them to be accompanied, enabling them to call their own witnesses or provide witness statements and providing a right of appeal.
Step 4: Taking action
After the meeting it should be determined what action should be taken. This may include a disciplinary warning or dismissal in accordance with Acas guidance, noting that the Employer considers sexual harassment to be an instance of gross misconduct.
Even if an Employee is found, after a fair and thorough investigation, to have sexually harassed someone, the Employer still has a duty of care to that individual.
The impact of suspension and/or dismissal on their wellbeing needs to be considered even if dismissal is the right course of action.
Where an Employer was unaware that their behaviour constituted sexual harassment – for example, a sexist joke or banter, the Employer should determine if further training is appropriate as part of the follow up action.
Note that NDAs and all and any associated settlement agreements should never be used or suggested to be used as a solution to silence victims or to cover up sexual harassment.
The Employer should continue to support the Employee who made the sexual harassment complaint and ensure that any people management policies such as performance management take account of any impacts experienced because of the harassment.
Depending on the specific situation and the involvement and/or knowledge of the Employee’s Line Manager, HR will need to ensure that the Employee continues to receive the necessary ongoing support and understanding of their Line Manager.
Step 5: Preventing future incidents
All reports are opportunities for the Employer to learn from and strengthen their approach to preventing sexual harassment.
The leadership team and trustees of the Employer need to take responsibility for preventing sexual harassment and embed an inclusive and psychologically safe climate.
This means monitoring any incidence of complaints and their outcome. Bearing confidentiality in mind, communicating how sexual harassment cases have been addressed increases trust in the reporting procedure and demonstrates that the Employer takes issues seriously.
Improving the Employer’s approach to preventing sexual harassment following a report may include:
reviewing strategy and policy
providing additional training
gaining feedback from internal and external stakeholders
reiterating the Employer’s values and the consequences of misconduct
regularly monitoring and reviewing reporting to ensure effectiveness.
7. WHAT NEXT?
Step 1 – Decide on whether to develop and implement a stand-alone Sexual Harassment Policy or a wider Anti-Harassment Policy.
Your policy should:
specify who is protected
state that sexual harassment will not be tolerated and is unlawful
state the law requires employers to take reasonable steps to prevent sexual harassment and that harassment or victimisation may lead to disciplinary action up to and including dismissal
define sexual harassment and provide clear examples of it: these should be relevant to your environment and reflect the diversity of people that harassment may affect
include an effective procedure for receiving and responding to complaints of harassment (including how you propose to deal with third-party harassment)
The section addressing third party harassment should explain clearly:
that the law requires employers to take reasonable steps to prevent sexual harassment by third parties
that while an individual cannot bring a claim for third-party harassment alone, it can still result in legal liability when raised in other types of claim
that it will not be tolerated
that Employees are encouraged to report it
what steps will be taken to prevent it
what steps will be taken to remedy a complaint and prevent it from happening again. For example, warning a visitor about their behaviour or reporting any criminal acts to the police or sharing information with the wider leadership team
Step 2 - Engage with your Employees and hold meaningful conversations.
As necessary and appropriate for your setting and environment look to hold 1-2-1 and group meetings – listen to people’s voices and use these conversations to help you understand and identify where any potential issues may be and whether the steps that you are taking now are enough.
Make sure that Employees are aware of how they can report sexual harassment and the consequences of breaching the policy.
Step 3 - Assess and take steps to reduce risk in your workplace
Undertaking a risk assessment will help you comply with the preventative duty.
When doing a risk assessment, consider factors that might increase the likelihood of sexual harassment and the steps that can be taken to minimise them. Examples may include:
Where are the power imbalances?
Is there a lack of diversity in your workforce?
Is there job insecurity for a particular group or role?
Are Employees working alone or at night?
Do your Employees have customer-facing duties?
Are clients, visitors or Employees drinking alcohol?
Are Employees expected to attend external events, conferences or training?
Do Employees socialise outside of work?
Do Employees engage in crude or disrespectful behaviour at work?
Step 4- Establish training needs.
Employees, including Line Managers, should receive training on:
what sexual harassment in the workplace looks like
what to do if they experience or witness it
how to handle any complaints of harassment
In environments where third-party harassment from visitors is more likely, Employees and Line Managers should also be trained on how to address these issues. Third party external training (provided through High-Speed Training) is accessible here:
Sexual Harassment Training For Employees (£25 + VAT)
Workplace Bullying and Harassment Training (£25 + VAT)
If you are one of our pay-monthly clients we offer a half-day workshop, hosted by Sarah Morgan at Crawford HR. You can book an exploratory free call with Sarah here.
Step 5: Confirm what you will do when a harassment complaint comes in.
You must:
act immediately.
respect the confidentiality of all parties.
protect the complainant from ongoing harassment or from being victimised during an investigation or complaint.
Complaints of harassment may be criminal offences, and you should speak to the individual about whether they want to report the matter to the police. Should they decide to do so, you should support them with this, so far as is appropriate.
If the harassment is by a third party it should be treated as seriously as if it was from an Employee and you should take steps to prevent it. This may include:
a mechanism to assess the need for lone working.
an assessment of the need to put people in the company of people who are a potential risk.
Step 6: Monitor your actions, continuously evaluating their effectiveness.
To maintain the effectiveness of any process or procedure that you put in place you will need to evaluate the steps taken on a regular basis. You could do this by:
Reviewing the complaints that you have received (both formal and informal) to see if there are any trends or consistencies that can be acted on.
Undertaking conversations with Employees to ask about their experiences of being subjected to or witnessing harassment and whether they would or would not usually report it and, if not, why not and what further steps could we take to encourage this.
Having regular feedback sessions on the working environment as a whole.
Remember to include your Employees in any conversations that you have around workplace culture, and, in particular, when discussing the subject of harassment.
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