Employers guide to preventing sexual harassment at work

Every other week it seems the press are profiling another high-profile sexual harassment story involving a large employer, a public body, even the House of Commons.

Sexual harassment generally takes place in situations where workplaces include older more senior males and younger inexperienced females…..but it doesn’t always conform to that common standard, and our HR team have come across plenty of examples that don’t fit that model. In today’s virtual working world, they have also seen plenty of cases involving online & video-based harassment.

In October 2024 the government will be introducing a new duty on employers to prevent sexual harassment. From next month workers could technically report their employers to the Equality and Human Rights Commission if they feel the employer isn’t doing enough.

Whilst we wouldn’t expect to a lot of referrals to the Commission, we do expect that a ‘failure to take adequate steps to prevent sexual harassment’ will crop up increasingly commonly within tribunal claims concerning sexual harassment and, if the tribunal agrees (that the employer didn’t take adequate steps to prevent it), employers will face an increase in any award made against them by up to 25%.

So, what do employers need to do to satisfy the new duty?

To some extent the answer depends on the size and resources of the employer, with larger and better resourced employers being expected to do more.

Too many SMEs hide behind the ‘we’re only a small company’ defence, but the reality is that the law assumes even small SMEs will take adequate steps, either buying in the necessary resources, or developing them in-house to ensure the requirement of the ACAS codes are met.

Even the smallest will be expected as an absolute minimum to carry out a risk assessment and, if risks are low, to have an up to date policy on sexual harassment, making sure employees are familiar with it. Higher risk micro employers (perhaps where the risk comes from staff exposure to clients or customers) will still be expected to do rather more to meet the requirements of the new Code.

Top tips for preventing sexual harassment at work

Here are our top tips for employers seeking to comply with the new Code:

Carry out a risk assessment on the likelihood of sexual harassment occurring

Step 1 is to risk assess the likelihood of sexual harassment occurring – in larger SMEs this risk may differ across different teams.

As a basic rule of thumb, any organisation with older experienced males and young inexperienced females will score a high risk, and will be expected to make concerted, consistent and continuing efforts to raise awareness of and to prevent sexual harassment.

This is though only a very basic rule of thumb – risks are also heightened where organisations (e.g. hospitality) require young staff to deal with large groups, or who may be left alone with customers in an environment where alcohol is consumed.

The same high risk would apply in the case of, for example, a younger female sales person who is required to visit male clients alone.

Develop an action plan

An action plan should set out what practical measures the employer intends to implement to prevent sexual harassment – examples could include ongoing (just once in inductions is not enough) training to raise awareness (with additional training in higher risk areas), or practical steps to protect employees e.g. doubling up when dealing with large groups in a hospitality setting.

Update and circulate a policy

A policy setting out the organisation’s approach to the prevention of sexual harassment should be revisited annually.

Circulating this (at least annually) to employees with a covering email drawing out the key points is a good way to start building your due diligence defence.

The policy & any accompanying materials should make clear that sexual harassment should be reported, and should encourage an open and honest environment, ensuring those reporting allegations are given effective protection from reprisals.

The policy should also make clear that it applies not just in work time, but also in many cases to out of contacts between work colleagues, e.g. staff parties or after-work drink arrangements.

Adopt a zero tolerance approach & communicate it

Employers need to make clear that sexual harassment, in all its forms, will not be tolerated. Actions speak louder than words and repeat or serious offenders should, after proper process and investigation, be subject to dismissal proceedings.

Employers should communicate very strongly that reporting sexual harassment is encouraged and (as I said above) that victims(and/or those reporting it) will be protected. Communications should also make clear that no amount of seniority or service will protect a perpetrator.

But be careful……

Employers must be careful here though not to let the new duty cause a knee jerk reaction to allegations – each case should be thoroughly investigated, and if disciplinary or dismissal proceeding are called for, employers should follow their policies carefully.

Develop an effective process for dealing with allegations

Once an allegation has been received, employers should assess the immediate risks of further continuing incidents and take necessary steps, firstly to stop the chances of the reported behaviour continuing, secondly to investigate the original allegation, remembering that allegations must be substantiated before disciplinary/dismissal processes are engaged.  

While they concentrate on investigating the allegations, employers inexperienced in these matters often omit to provide the support necessary for the victim and/or persons making the allegations. I

in some cases this omission can amount to a failure of an employer’s duty of care, which could give rise to constructive dismissal allegations against the employer.

In one case for example, a female employee made a credible allegation of rape against a male colleague. Instead of suspending the male during the investigation, he was moved to a different shift, but still came into contact with the victim on several occasions. Ultimately, she felt it necessary to resign, before bringing an unfair dismissal claim against her employer.   

Victims/disclosers should be monitored to ensure they are protected from any ramifications e.g. victimisation by colleagues/managers or the alleged harassers themselves.

In cases of serious allegations of sexual harassment, it may be necessary to suspend the alleged perpetrator while investigations are carried out. In larger organisations and where allegations are less serious, it may be possible to properly separate the alleged perpetrator and victim while the investigation is carried out.

Where suspension is deemed necessary, great care should be taken to keep the period of suspension as short as possible. It’s also important to manage the communication to others who may want to know why a colleague is suddenly not at work – ‘sickness’ or ‘short term holiday request’ often helps avoid unhelpful speculation.

Consider the merits of trained investigators

A good quality investigation will go a long way to ensuring a good quality and just outcome. Larger employers might consider training nominated individuals to carry out sexual harassment and other sensitive case investigations. Other employers might choose to outsource investigations to organisations like JCHR’s HR team at myHRdept.

HR Support from JCHR

Our HR outsourcing team are in their 23rd year of providing outsourced HR. As well as assisting clients in shoring up their employment law compliance (and protecting them from claims) they produce a range of training materials, conduct complex investigations and hearings and provide a bank of support hours to assist with managing cases, including providing HR administrative support.

Our HR team provide and maintain client HR policies & handbooks, and attend client sites to conduct investigations & hearings and to train internal investigators for larger clients. The team also supply training videos & materials, including videos to raise awareness of sexual harassment at work.