New duty on employers to prevent sexual harassment

Out-Law News | 29 Jul 2021 | 9:12 am |

Trish Embley tells HRNews about the government’s proposals for preventing workplace harassment

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  • Transcript

    After a very long wait the government has finally published its response to its Consultation on Sexual Harassment in the Workplace, which closed in October 2019. The headline is the government will introduce a positive duty on employers to prevent sexual harassment, something favoured by the majority of respondents.  Protections will not be extended to volunteers and interns.

    Personnel Today covers the news with the headline that new legislation will make employers liable for not taking action to prevent sexual harassment at work. So, employers will be required to take reasonable, proportionate steps, taking into count their size and circumstances. Under current legislation, employers are already expected to take all reasonable steps to prevent workplace harassment, but the government plans to beef this up by placing a new proactive duty on employers designed to force them to be more proactive in dealing with this serious issue. 

    There are four other changes to be taken forward by the Government’s Equalities Office. The first is introducing protections for employees from harassment by third parties such as customers or clients. Second, bringing in a statutory code of practice which will come from the Equality and Human Rights Commission. Third, guidance for employers on how to tackle sexual harassment in the workplace. Fourth, they will look at extending time limits for claims based on the Equality Act – they could be doubled from three to six months. There is no official timetable for these changes yet - the government says they will be introduced ‘in due course’ when parliamentary time allows.

    There has plenty of reaction to the government’s response, and we tend to agree with commentator Darren Newman on Twitter who said the government’s proposals may not be as far-reaching as the announcement might suggest. He says he thinks the Government's commitment is pretty vague and questions how effective any enforcement by the Equality and Human Rights Commission might be. He points out the response seems to suggest that individuals will also be able to take enforcement action – although that’s not clear – and it seems that there will need to be an 'incident' before individuals can take any action. He goes on to say: ‘my suspicion is that what will emerge is a slight shift in emphasis on the current provision on employers being liable for harassment unless they have taken reasonable steps to prevent it.’ We tend to agree with that - a shift in emphasis - but nonetheless an important one to take onboard, especially large employers with a reputation to protect. 

    One aspect of the new duty, when we see it, will undoubtedly be around harassment training. That has always been important but, in the past, it has tended to be a reactive step taken by employers who have faced harassment claims. That is likely to change, we think, with HR professionals well placed to lead the way in getting those training programmes rolled out. So let’s hear more about that. Trish Embley is our Head of Client Training and she joined me by video link from Birmingham to discuss the proposals. I started by asking Trish what she makes of the government’s response to the consultation:

    Trish Embley: “Really, looking at the proposals from the government, to me it is just building on what I would say is the existing direction of travel in terms of what employers are obliged to do with harassment in the workplace and particularly anti-harassment training. So we had not so long ago and EAT decision, Allay Limited v Gehlen, that basically said you can’t take a ‘tick box’ approach to preventing harassment in your workplace. I think they put it quite nicely in that judgement where they  said it is not good enough to get your employees together and say, ‘come on everyone, don’t harass each other, not back to work’. So when we look at this term ‘prevent’ it has got to be outcome-focused. So, I think many employers are looking at anti-harassment training and they might, for example, produce 15 minutes of e-learning for their employees. Now the question I would ask there is whether that is actually going to change culture and outcomes. I think it is a great starting point, I think you can get across some of the complex issues that have to be considered around where is the line drawn with banter, what is the relevance of intent, however, I think we are going to have to take that to the next stage and by that, I mean discussing things like harassment in team meetings or workshops or on-site gatherings and meetings because there are a lot of complex issues in harassment. There is that balance with not wanting to work in a sterile work environment and many of our clients, in their values, will talk about bringing your whole selves to work and how work should be a fun place, so it is really, I think, going that next stage with prevention in terms of a deeper dive into training around behaviours, what you can do, what the outcome of any action might be and particularly, I think, offering those who are victims of harassment a lot of comfort about why this will not be career limiting, this isn’t a negative thing for you to do, it’s something that the organisation want people to speak up on and they are encouraging people to speak up, and demonstrating that, how they are creating that culture.”

    Joe Glavina: “Can I ask you about reputation, Trish? Previously harassment training has been used as evidence to support an employer’s ‘reasonable steps’ defence in the tribunal. Going forward, when this new duty comes in, employers will be at risk of being ‘called out’ by anyone, potentially, who thinks they are failing in their duty. Do you agree?”

    Trish Embley: “Yes, absolutely. We‘ve seen over the years that reputation and keeping to ‘brand values’ have overtaken, I would say, employers’ concerns about litigation. So, again with this proactive duty becoming this sort of stand alone mandatory duty it will, I think, raise the profile of the importance of employers actually taking positive steps in the workplace to change the culture and to combat harassment. I think as that awareness is raised more people will be prepared, whether that be through social media or the broader media itself, to speak up and say look my employer isn’t complying with the statutory duty and even if they don’t bring tribunal claims I think that in itself will be a driver for employers to say look this has got to become a real priority now for us.”

    Trish mentioned e-learning. We do have a pair of e-learning modules on the subject of sexual harassment, one for employees and one for managers which take roughly 40 minutes to complete and which include a number of exercises throughout, and questions to test understanding. As to cost, we don’t operate the typical subscription model that you see with the vast majority of e-learning courses on the market which base the cost on the number of users. Instead all the modules come with a licence for an unlimited number of users which means hundreds of people can all be trained for a one-off purchase cost, with the option to repeat the training as many times as you like without any further cost. The two harassment modules cost £3,750 each. Included for that cost is a degree of tailoring – adding your organisation’s logo throughout and including your organisation’s policies and procedures and any other documentation you'd like to add. 

    If you would like to have a closer look at any of the modules you can, we are offering a free demonstration so please do get in touch if this might be something you want to consider for your staff. Contact details are on the screen for you.

    LINKS

    - Link to government response to consultation on sexual harassment in the workplace