Employer Duty of Care around Sexual Harassment
Employers should be proactive and systematic in the workplace to demonstrate employer duty of care around sexual harassment
Employers have a responsibility to create a safe and respectful workplace, and a key part of this duty of care is to prevent sexual harassment. Sexual harassment is not just inappropriate. It is illegal and can also have a serious emotional, psychological, and professional impact on those who experience it. In extreme cases or persistent low level microaggressions it can be traumatic.
Employers are legally obliged to take proactive steps to ensure that all employees feel safe and protected at work. They must make reasonable efforts to prevent sexual harassment by any perpetrator, including third parties such as customers, clients, and members of the public.
Duty of care and sexual harassment
Employers should be proactive and systematic in how they prevent and tackle sexual harassment in their organisations. This should not be a box checking exercise, as they may need to show evidence at some point of those reasonable steps they have taken.
The first important step is issuing a clear definition of sexual harassment.
“Sexual harassment” is defined as any behaviour of a sexual nature that affects the dignity of women and men, which is considered as unwanted, unacceptable, inappropriate and offensive to the recipient, and that creates an intimidating, hostile, unstable or offensive work environment. INTERNATIONAL LABOUR ORGANISATION
And as pointed out sexual harassment is part of a continuum of violence starting with sexism, defined as follows by The Council of Europe :
any act, gesture, visual representation, spoken or written words, practice or behaviour based upon the idea that a person or a group of persons is inferior because of their sex. THE COUNCIL OF EUROPE
Legal framework
What is changing is that employers are now expected to take anticipatory preventative action. In January 2020, the EHRC in the U.K. published technical guidance to help employers understand how the Equality Act 2010 prohibits harassment at work and outlining their obligations. The EHRC is currently updating this guidance to take account of the new duty and on 9 July 2024 it issued a consultation on its proposed changes.
3.19. The preventative duty is an anticipatory duty. Employers should not wait until an incident of sexual harassment has taken place before they take any action. The duty requires that employers should anticipate scenarios when its workers may be subject to sexual harassment in the course of employment and take action to prevent such harassment taking place. If sexual harassment has taken place, the preventative duty means an employer should take action to stop sexual harassment from happening again. However, if an employer fails to take reasonable steps to comply with the preventative duty, there are consequences.
The EHRC requires U.K. business from October 2024 not just to prevent sexual harassment, but to take anticipatory preventative action. In simple terms if you think a situation is a high risk for sexual harassment you need to put measures in place to mitigate that risk. For example women working in isolation, where alcohol is involved, late at night or in male dominated functions etc. These are all potentially higher risk environments.
How to demonstrate employer duty of care around sexual harassment
1. Leadership led culture of respect
Leaders are responsible for creating a culture of respect which is a top-down initiative, to be enforced at all levels of the organisation. Senior managers should lead by example, demonstrating through their own behaviour that respect and professionalism are non-negotiable. When respect is a core value, it helps to prevent behaviours that could lead to sexual harassment. If leaders regularly reinforce these values through communication, actions, and recognition of positive behaviour it helps build a work environment where harassment is less likely to occur.
2. Appropriate policies and procedures
Employers should establish clear and comprehensive policies against sexual harassment and also its pre-cursor daily sexism. These policies need to outline what is involved in sexual harassment, including unwanted advances, inappropriate comments, or any behaviour of a sexual nature that makes someone uncomfortable. The policy should also explain the consequences for anyone found guilty of such behaviour. It is important that these policies are not just written, but also communicated clearly to all employees. Everyone should know what is expected of them and what behaviours are unacceptable. By setting these boundaries, employers create a foundation for a safe workplace.
A formal policy won’t change culture on its own but it’s still important to have written protocols and guidance. These should define sexual harassment, give examples of what it is and outline everyone’s responsibilities for preventing and tackling it. These can be used to promote the organisation’s commitment and practices to prevent and educate the workforce about sexual harassment. Given its sensitive and potentially complex nature, organisations may wish to consider dealing with harassment under a separate procedure to the normal Code of Conduct or Corporate Ethics guidelines.
3. Awareness training and development
Training is another crucial aspect of preventing sexual harassment. Employers should provide regular training sessions for all employees, including managers and supervisors, on what sexual harassment is and how to prevent it. This training should also cover how to recognise harassment, support those who may be experiencing it, and report incidents. When employees are educated about the seriousness of sexual harassment and understand the company’s policies, they are better equipped to prevent it or intervene if they see it happening. Training also reinforces the message that the company takes sexual harassment seriously and will not tolerate it.
DEI or HR should organise regular training sessions for all staff so that all staff understand what sexual harassment is and their role in preventing/addressing it.
Learn how to deal with sexism and harassment in the workplace.
4. Neutral reporting channels
Employers must also establish an easily accessible, safe, and straightforward reporting process for anyone who experiences or witnesses sexual harassment. This process should allow employees to report incidents confidentially, without fear of retaliation. It is crucial that those who come forward feel supported and are confident that their concerns will be taken seriously. Employers should designate trained individuals or teams to handle these reports sensitively and thoroughly. Ensuring that there are clear, accessible channels for reporting is a key part of fulfilling the duty of care.
There needs to be well-promoted reporting channels for complaints and the organisation needs to respond to these promptly, fairly, and thoroughly. Any evidence of discriminatory behaviour or harassment among staff needs to be investigated and acted on swiftly with a clear message sent out that such behaviour will not be tolerated. Attempts to manipulate the system
5. Line management involvement
Line managers play an important role in identifying, challenging and dealing with unfair treatment including sexual harassment either directly or as an ally. Organisations must give them the appropriate training, education and guidance to give them the confidence to tackle issues around sexual harassment and also everyday sexism.
6. Reviewing systems and data
Companies should monitor the gender diversity of the workforce at every level, including recruitment and promotion systems, to highlight if there is any potential discrimination or harassment on grounds of gender. Employers should track their data to see if there are any specific hot spot areas, investigate immediately and take preventative action. This requires a certain level of transparency around data something some organisations wish to avoid.
Employee surveys will enable the organisation to collect feedback in areas like gender equality, bullying and harassment.
7. Immediate action
Employers need to take immediate and appropriate action when a report of sexual harassment is made. Investigations by trained personnel, note the word trained; This means they should be qualified professionals and not performative appointees seconded from unrelated areas. Investigations should be thorough, unbiased, and conducted with the utmost confidentiality. If harassment is confirmed, the company must follow through with the consequences outlined in its policies. This not only addresses the incident but also sends a strong message that sexual harassment is taken seriously and will not be tolerated.
They should provide the necessary psychological support to the target also by a trained professional.
Workplace harassment continues to plague corporate cultures and as leaders have an increasing duty of care around sexual harassment they need to become even more vigilant.
Need to prevent sexism and harassment in your organisation and protect employees? Contact 3Plus
