18.04.2023
The thorny issue of sexual harassment at work has once again been the focus of media attention of late, as we have seen the Equality and Human Rights Commission (EHRC) concluding legally binding agreements (known as section 23 agreements) with various high-profile employers, committing them to undertaking specific measures aimed at better protecting their workers against sexual harassment following numerous complaints.
In light of these developments, all employers would be wise to take stock, assess their own workplace culture and take proactive steps to address sexual harassment. As the EHRC notes in its technical guidance, “No workplace is immune to harassment, and a lack of reported cases does not mean that people have not experienced it.” Below, we explore five key steps that HR should be taking to tackle sexual harassment at work.
Reminder of the law: what is sexual harassment?
Sexual harassment occurs when an individual engages in unwanted behaviour of a sexual nature which has purpose or effect of:
- violating someone’s dignity; or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual concerned.
Behaviour ‘of a sexual nature’ can cover verbal, non-verbal or physical conduct (including unwelcome sexual advances, inappropriate touching, forms of sexual assault, sexual jokes, displaying pornographic photographs or drawings, or sending emails with material of a sexual nature). Sexual harassment can be a one-off incident, or an ongoing pattern of behaviour.
Under the Equality Act 2010, employers are legally responsible if an employee is sexually harassed at work by another employee, and the employer has not taken all the steps they could to prevent it from happening.
Action points for HR
There is no doubt that tackling sexual harassment at work is a complex issue, which will require a multifaceted and bespoke approach. However, some of the commitments made by employers in recent section 23 agreements (which are publicly available online via the EHRC’s news page) provide useful signposts for employers on how issues relating to sexual harassment at work could be addressed. For example:
1) Clear zero-tolerance messaging: Do your written policies make clear to staff that your organisation has a zero-tolerance approach to all forms of harassment? This is an important message to convey to staff. You should undertake a careful review of your relevant policies and procedures (such as your anti-harassment and bullying policy and/or grievance policy) to ensure they expressly communicate to your workforce that harassment will not be tolerated. It is vital that staff feel able to raise concerns about any inappropriate conduct and have confidence that any allegations will be handled fairly, regardless of the status of the alleged perpetrator. Do your policies set out a robust procedure for how your organisation will respond to any complaints that are raised? As with any policy, it is not enough to just have it written down in a drawer somewhere – it must be effectively communicated to staff and be properly implemented in practice.
2) Staff survey: Have you asked your staff to tell you about their experiences of working in your organisation, in order to understand how prevalent the issue of sexual harassment might be? One key pledge that is often contained in section 23 agreements is to conduct an anonymous survey of workers about workplace safety. This should enable the company to gain a clearer insight into where issues within the organisation could lie, hopefully making it easier to address areas of risk. Setting up an anonymous reporting line for staff to raise concerns is another way employers can find out more about any internal practices which are negatively impacting the working environment.
3) Anti-harassment training for all staff: Have you delivered anti-harassment training to your employees? Providing thorough training to staff on what constitutes sexual harassment and how to report inappropriate behaviour is a key method of prevention. Doing this can also help to show that as an employer you have taken ‘reasonable steps’ to prevent harassment from occurring (which would be crucial in defence if an employee brought a claim). Our understanding of what constitutes acceptable behaviour at work is continually evolving and some conduct that might historically have been viewed as ‘harmless workplace banter’ is now no longer acceptable. Giving employees a ‘safe space’ during a training session to share experiences and explore what counts as inappropriate behaviour can help to establish the right kind of working culture.
4) Manager training: Do you provide focused training to help your managers identify areas of risk within their teams, proactively take steps to prevent sexual harassment and know how to deal with any concerns that are raised? Do they understand the importance of zero-tolerance messaging and what is involved in taking a zero-tolerance approach? Do they know how to spot when someone may be experiencing harassment? It is vital that your managers, as well as HR, know how to investigate allegations properly (including how investigation findings should be handled for data protection compliance purposes), as well as how to support the individuals involved. Managers also need clear training on how to fairly carry out any disciplinary processes that may be needed following a thorough investigation.
5) Monitoring progress towards a safe, respectful and inclusive working environment will be important in ensuring that the above measures are effective. One way to monitor your progress might be to repeat your staff survey six months or a year after you have communicated any updates to your policies and provided anti-harassment training, to see whether your staff feel more confident that they will be protected from harassment at work. This should also help to identify any areas of your business that continue to give cause for concern.
Of course the above action points will be significantly easier to achieve if your senior leaders understand the importance of tackling sexual harassment and are actively invested in addressing any damaging internal practices that may have evolved over time. It is important to send a strong message from the top that your organisation takes a zero-tolerance approach and that any concerns that are raised will be sensitively and thoroughly addressed.
Costs of failing to take sexual harassment seriously
Poorly handled allegations of harassment can result in substantial costs to an organisation, both in terms of financial expenditure and the amount of time required from employees (including management) to defend any legal claims. Failure to effectively tackle this issue can also impact commercial productivity and potentially lead to increased sickness absence, for example caused by stress amongst individuals experiencing harassment at work. If an organisation persistently fails to protect its staff, there is a risk of losing key talent, as well as suffering reputational damage and reduced consumer confidence in the long-term.
How we can help
Make UK offers a package of support aimed at preventing sexual harassment at work, including a template Anti-bullying and harassment policy (including guidance notes), staff surveys (Pulse surveys) and anti-harassment training for staff (micro-awareness video and/or half day workshop). For further details click here, or contact Nicola Kibble - [email protected].
If you are a Make UK subscriber, you can access further information about harassment and bullying, including template policies and drafting guidance, in the HR & Legal Resources section of our website, the Sexual harassment webpage and/or speak to your usual adviser if you have specific queries on this topic.
If you are not a Make UK subscriber, our expert HR and legal advisers can offer guidance on a consultancy basis. For further information, contact us on 0808 168 5874 or [email protected].