With the festivities in full swing, the aftermath of the office party can be open season for employment claims. Complaints of harassment are likely to be the first on the list in the sober light of day, with sexual harassment being the main contender.

Recently the Worker Protection (Amendment of Equality Act 2010) Bill has received Royal Assent, to become the Worker Protection (Amendment of Equality Act 2010) Act 2023 and will come into force in October 2024.

This is an important piece of legislation when it comes to sexual harassment litigation. It introduces a statutory duty on employers to take reasonable steps to prevent sexual harassment of their employees in the workplace.

Indeed, the current law on sexual harassment places the onus on individuals experiencing sexual harassment to report incidents to managers and pursue a tribunal claim, rather than on employers to prevent harassment in the first place.

Under this new Act, the Equality and Human Right Commission can take enforcement steps if employers fail to take reasonable steps to prevent sexual harassment, regardless of whether any sexual harassment claim is brought.

The Act also gives employment tribunals the power to increase compensation by up to 25% where an employer is found to have breached the new duty to prevent sexual harassment.

We have set out some tips below for you to consider in preparing for the introduction of the Act.

Issuing/Updating Policies

Some amendments to policies dealing with harassment may be required. Employers may want to consider whether any current harassment, bullying, equal opportunity and other relevant polices already in place need to be updated to ensure sexual harassment is covered in sufficient detail. Alternatively, employers may want to introduce a separate policy on sexual harassment.

Such policies should describe what harassment is, set out clear examples as to what type of behaviour constitutes harassment and also explain what the consequences will be if such conduct takes place. These policies should also set out a procedure for reporting harassment, explain how complaints will be dealt with and what the potential outcomes could be.

Training

One of the more important aspects of taking reasonable steps to prevent sexual harassment is likely to be regular and effective training of employees. Employers and employees may want to undergo updated training if they have not received training for a while.

Employers may want to review whether the “speak up” or whistleblowing policies and procedures in place make it clear that employees can use them to raise harassment issues.

Training should also be provided specifically to managers on how to deal with complaints of harassment to ensure that concerns are dealt with promptly, sensitively and appropriately. Also consider whether managers are properly trained in “speak up” and “listen up” processes, as well as whether they feel equipped to handle consistent and thorough responses to complaints of sexual harassment. Revisiting or introducing procedures in that respect can help to clarify how the organisation tackles complaints.

Employers may also want to provide regular situational training to help staff members avoid the threat of harassment, and to give those who witness harassment the means to safely intervene or support victims, and provide clear reporting lines so that employees can confidently and safely report incidents of harassment in the workplace.

Staff should be made aware of the process for escalating concerns, how confidentiality will be maintained and feel reassured that they will not suffer repercussions for making a complaint.

Culture audit

Employers may also want to proactively identify the particular risk of harassment in each set of roles and circumstances in order to consider specific and tailored measures to protect employees in each situation.

This might sensibly involve consulting with employee representatives, or carrying out a culture audit, for example using pulse/anonymous surveys, to assess whether there may be risks of harassment the employer is unaware of.

Take complaints seriously

If a member of staff raises a complaint of sexual harassment, this must be investigated promptly and thoroughly, so swift action can be taken to prevent any repetition of the behaviour including instigating a disciplinary procedure where appropriate.

Please note that this is a very brief summary of the key elements to consider when dealing with sexual harassment in the workplace. The contents of this article do not constitute legal advice. If you require any further information please contact us at employment@berrysmith.com or on 02920 345 511.