New laws force British employers to stop harassment before it starts

Preventing bad behavior in the workplace before it happens may sound like a mystery to employers.

But from this week, all UK businesses will have to take “preventative action” to stop sexual harassment before it starts. The new rules require employers to identify the risks of a potential incident – ​​and shut them down – rather than acting appropriately afterwards, and are already reforming the code of conduct at top companies in the city.

The bill, part of the new Labor government’s broader package of employment reforms, will come into force on October 26. It means that if an employee brings a claim for sexual harassment to a tribunal, and that claim is upheld, the tribunal must consider whether “reasonable steps” were taken to prevent the misconduct. If the company fails to prove that it has taken sufficient preventive measures, the tribunal can increase the damages owed by up to 25 percent. The Equality and Human Rights Commission (EHRC) could also take enforcement action against the employer.

“This is important for employers,” says Kate Pumfrey, partner at law firm A&O Shearman, “because awards for discrimination are unlimited, unlike some awards such as unfair dismissal – especially in some sectors where wages tend to be higher.”

The issue of workplace harassment has returned to the spotlight after a BBC investigation last month highlighted multiple claims of sexual assault or rape against the late Harrods owner Mohamed Al Fayed. The department store was accused by a lawyer representing some of the alleged victims of a “systematic failure of corporate social responsibility” towards the women involved.

Shifting the focus to preventing misconduct is aimed at forcing a fundamental shift in workplace culture. Employers are expected to anticipate scenarios in which their workforce may experience sexual harassment – ​​and take action to eliminate that risk.

Amy Bird, director of the employment team at law firm Clifford Chance, said the anticipatory duty was intended as a “pathway to real cultural change across organisations”.

“The big difference here is that historically there was a duty to take ‘reasonable steps’ when defending a claim, but that was used as a shield. There is now a requirement to be at the forefront of taking those steps and not just defending an action.”

In practice, this will pose major challenges for companies. Advocates say noticing the threats will be the main obstacle. “Discussions with customers pay a lot of attention to preventive action. How do you necessarily know what is preventing you? How can you identify the problems? Where do these come from?” said Philippa O’Malley, partner at law firm Slaughter and May.

One area of ​​concern for employers is expected to be social situations that pose greater risks of a potential harassment incident, such as situations involving overnight stays and larger gatherings with senior and junior employees, where alcohol is served.

This is “an area where employers may need to reframe how (employees) interact with each other – and with third parties – because these give rise to particular risks when you look at the data,” Pumfrey said. “For example, there are more complaints about sexual harassment after a Christmas party year after year.”

A leading accounting firm in the city said it had already banned alcohol in the office except at official events. The use of drink tokens at social events – where the number given to each participant is limited – has also been trialled as a way to combat excessive drinking.

The company has a designated “person in charge” at off-site events, whose job is to be alert to the amount of alcohol being consumed and intervene if necessary, a person at the company said.

The new rules will also make employers liable for harassment of staff that takes place within the work context, but by people outside the company.

For employers who have regular contact with clients, customers and suppliers in a quasi-social context, there may be special risks surrounding the ‘power imbalance’ among those present, according to lawyers.

Some companies are looking more closely at what happens at customer events and wider social gatherings, and are introducing a code of conduct not just for employees, but also for external guests where there is a potential risk of harassment.

KPMG has strengthened its reporting channels so people can “talk to someone independent,” including through its whistleblower hotline, according to people close to the company.

Slaughter and May’s O’Malley suggests that employers could encourage their staff to raise concerns through their “speak up policy(s) in reviews”. She added that some companies were introducing a ‘triage system’ to bring together risks as they arose.

A report by the Treasury Department’s committee on sexism in the city this year found evidence of a higher prevalence of sexual harassment in financial services than in other sectors. About 45 percent of employees surveyed in the sector indicated that they had experienced this at some point. Last month, Lloyd’s of London said it is discussing changing its bylaws to tackle misconduct in the century-old insurance market, as it seeks to shake off its reputation for poor behaviour.

For companies in some other sectors, a particular challenge will be the application of the new rules in places where there is contact with the public.

For example, according to a report last year, 8.6 percent of sexual misconduct against NHS workers was committed by healthcare users – patients, their relatives or other members of the public. Transport and hospitality were also highly exposed to such risks, said Alison Spencer-Scragg, national equalities officer at Unite.

Unite, one of Britain’s largest trade unions whose members represent at least 20 sectors, many of which are male-dominated, is in favor of companies having “standalone policies” on sexual harassment that are “too is often placed in the same box as bullying. , said Spencer-Scragg. She pointed to “not too onerous” ways to help prevent harassment, such as clearer signage reminding people not to abuse staff.

O’Malley said the #MeToo movement has “accelerated the problem of sexual harassment and moved it up the corporate ladder quite quickly.” UK financial regulators have also focused on non-financial misconduct.

But the Fawcett Society, a women’s advocacy group, said it is crucial to change the culture that “individualises” tackling sexual harassment and makes it the responsibility of victims to come forward to creating environments that prevent this from happening at all.

Data shows that at least 40 percent of women experience sexual harassment at some point in their careers, according to the group.

“We know the current system isn’t working,” said Jemima Olchawski, executive director of the Fawcett Society. “Seventy percent of women do not report their experiences with harassment; those who do report being dismissed, minimized, disbelieved, or coerced into controlling the perpetrator’s behavior.”

Not all staff are happy with the shift towards more supervision and moderation. Some employees have pushed back, saying attempts to control alcohol consumption, for example, are undermining trust between them and their bosses.

“No one is saying you can’t socialize at work,” says Olchawski, adding that if employers “can’t trust staff to have a Christmas party and not bother a co-worker, that’s a serious organizational problem. ”.

However, she warned that organizations face “huge risks if they do not act” in terms of potential harassment, citing low morale, productivity, problems with staff retention and huge reputational risks as symptoms of a “poor working culture”.

‘The conversation may be fixated on something that may be difficult or burdensome, but… . . instead of crossing your fingers and saying no one told us, this is an important way to gain momentum.”