Laura Gillhespy, associate solicitor, Torque Law LLP:
Laura Gillhespy, associate solicitor, Wellbeing has come to the forefront in recent years and UK employers have worked hard to increase awareness around mental health and be more open, flexible, and inclusive. However, sexual harassment remains one cause of poor mental health that few have adequately addressed.
58% of women, and 62% of women aged 25-34, have experienced sexual harassment at work and these rates are reported to be higher amongst LGBT workers. With more than 45% of victims experiencing a detrimental impact on their mental health, it’s clear change is long overdue.
From October 2024, The Worker Protection (Amendment of Equality Act) Act 2023 will introduce a mandatory duty on employers to protect workers from sexual harassment – but will it go far enough?
The current position
Sexual harassment is unwanted conduct (verbal, non-verbal or physical) of a sexual nature that violates someone’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive working environment (The Equality Act 2010). Employers can be vicariously liable for sexual harassment by one of their employees against another. Currently, it’s a defence for an employer to demonstrate they’ve taken ‘all reasonable steps’ to prevent harassment – but there is no legal requirement to do so.
The new law
As of October, this defence will be upgraded to a positive duty – requiring all employers take proactive steps to prevent sexual harassment. Employment tribunals will have the power to uplift compensation by up to 25% if the employer is found to have failed in its mandatory duty.
That being said, failure to comply will not yet be a stand-alone claim. A successful claim for sexual harassment will need to successfully prove a failure be protected from it by a breach of this duty. It’s widely considered that this fails to go far enough to address this issue. Further reforms are anticipated – but employers must still act now.
Why should employers act now?
Firstly, a compensation uplift isn’t insignificant given that sexual harassment allows uncapped awards for loss of future earnings. Protecting the organisation from a hefty claim and mitigating risk is sensible. However, the benefits of taking this proactive duty seriously extend far beyond risk and compliance.
Worker’s wellbeing, mental health and workplace performance is being impacted by unwanted sexual conduct and, culturally, addressing it will bring huge rewards. Research reports that one in four victims avoid certain work situations, such as meetings or particular shifts, to avoid perpetrators. One in five leave their job as a result of this treatment and one in four say they actively want to leave but feel unable to. This conduct is impacting culture, absence rates, psychological safety, wellbeing, mental health, productivity, performance, and employee retention.
There is no place for sexual harassment in modern workplaces.
What action can employers take?
Example measures include:
- Conduct a targeted risk assessment to identify weaknesses and determine actions.
- Deliver tailored training, making clear that you operate a zero-tolerance culture.
- Review policies, evaluating, implementing and updating to ensure they cover the full range of unacceptable behaviours and how to raise a complaint.
- Recirculate policies and ensure they’re read, understood and adhered to.
- Update reporting procedures, for example, consider online reporting tools to be more accessible and ensure employees feel comfortable raising complaints.
- Conduct regular staff surveys to ascertain confidence to report incidents.
- Train ambassadors for staff to speak to on a confidential basis.
The EHRC has confirmed that the existing code of practice and technical guidance will be updated in due course – but don’t wait. Your employees need you to act now.
Header image: © Yan Krukau from Pexels via Canva
Guest Post
This post has been written by an expert guest contributor, just for Yorkshire Legal News.