why prevention is better than cure

Sexual harassment in the workplace remains an issue and with new legislation on the horizon, it is crucial that employers are proactive in addressing any changes they may need to make. A ONS survey 2023 found that more than a quarter of those who had experienced sexual harassment said they had experienced it in their workplace.

The issues raised do not always relate to the behavior of colleagues. A new one Birbeck, research from the University of London Research into the prevalence of sexual harassment in healthcare found that 45 percent of doctors worldwide (52 percent female and 34 percent male) had been sexually harassed by patients, with Britain one of the countries with the highest number of cases.

These findings are worrying and new legislation – the Worker Protection Act (Amendment of Equality Act 2010) – will place a greater burden on employers to take reasonable anticipatory measures to prevent sexual harassment of their employees. Preventing the behavior from occurring in the first place is an important step given the trauma and damage that these types of behaviors can cause.

New technical guidance from the Equality and Human Rights Commission (EHRC) on dealing with sexual harassment in the workplace has been issued before the law comes into force on October 26 this year. The previous EHRC guidance provided a point of reference for employers dealing with this sensitive topic.

With new legal obligations, it is crucial that companies in both the public and private sectors are prepared for the risks of this new law.

The new legal obligation and additional risks for employers

Importantly, the new duty of anticipation includes preventing sexual harassment by third parties, such as customers and suppliers. Strictly speaking, an employee will not be able to bring such an isolated third party claim in an employment tribunal unless the employer’s failure to act was itself discriminatory or an employee can claim constructive unfair dismissal.

In deciding whether a step is reasonable, the employer’s size, sector, working environment and resources are likely to be relevant factors.

Employment tribunals may award a claimant a significant increase in damages, on top of an already unlimited damages award. The EHRC could also take enforcement action against the employer. It’s not too late to take steps to prepare for October 26, including:

• Workplace audits to identify workplace hotspots and issues, looking at information such as previously reported incidents, exit interview statistics and employee turnover

• Anonymous surveys to get a clearer picture of unreported sexual harassment

• Risk assessments using information from the above to help organizations identify steps to mitigate risk.

In addition to these immediate steps, there are a number of ongoing actions that employers can consider.

Assess internal processes

Reviews of existing policies and contracts to ensure expectations of staff and third parties, such as temporary workers, contractors, clients, patients, customers, suppliers and the general public, are met conform to the organization’s values ​​and codes of conduct about sexual harassment. Some employers are reconsidering their approach alcohol consumption during work-related functions.

Involve employees

Employers must communicate a zero-tolerance approach sexual harassment in the workplace, and the consequences of such conduct, via email or notices displayed in prominent places in the workplace.

Encourage employees to report sexual harassment concerns about staff and third parties, be clear about them. how to report sexual harassment and the steps the organization will take to address any cases.

Training to prevent sexual harassment

All employees should be required to receive meaningful, high-quality training. Existing case law shows that a ‘checkbox approach’ is not sufficient; the training must be both experiential and current.

Importantly, it should give employees the skills and confidence to raise inappropriate behavior in a constructive way, with clear guidance on how and where to raise their concerns. Records of attendance and course content must be kept.

Monitoring and reporting

Consider who within your organization will be responsible for monitoring, evaluating and reporting on the actions you have taken to eliminate sexual harassment in the workplace. This will also help to identify and provide accountability for any further steps.

Actions, not words

Finally, key considerations for businesses and organizations preparing for these new risks and obligations are:

• Invest in training;

• Live and breathe your policies and ensure behavior is consistent with them;

• Expect to be challenged: Does the organization’s response or action seem fair or appropriate? Does the response to a reported concern support a ‘zero tolerance’ commitment in your policy, looking at the decisions made to investigate or not to investigate, and any disciplinary outcomes?

• Monitor processes, decisions and outcomes: will this encourage or erode the confidence of staff speaking out in the future?

• When responding to sexual harassment concerns, be more careful with language and terminology;

• Minimize delays in the process;

• Select experienced researchers who take a trauma-informed approach and establish a mandate that takes data sharing into account from the start;

• Provide informed feedback to key parties (e.g., the reporter and the subject of the concerns).

Jacqui Atkinson and Raymond Silverstein are partners at Browne Jacobson