Information about harassment risks and regulations in place in the workplace

As of Oct. 26, a new statutory duty under the Employment Protection (Amendment of Equality Act 2010) Act 2023 will require employers in England and Wales to take reasonable steps to prevent sexual harassment at work.

According to Clyde & Co partner Paula Jefferson, the legislation introduces a new risk zone for employers, with compensation potentially increasing by up to 25% in Employment Tribunal claims for breaches of this duty.

Jefferson noted that the new work comes as allegations of workplace harassment continue to surface in a variety of sectors, and recent high-profile cases underscore the need for stronger preventative measures.

“The dynamics of the workplace, where power differences are inevitable, means that opportunities for abuse are always there,” he said, stressing the importance of safeguarding in all organizations.

To support compliance, a new Technical Guidance on Sexual Harassment and Harassment at Work has been issued, which provides detailed examples of preventive measures. Jefferson highlighted the need for organizations to create a culture where employees feel safe to report harassment, including anonymously.

Prompt, consistent, and sensitive handling of such reports is essential, and employers are encouraged to use the outcome of the investigation to address potential risk areas or cultural issues.

Jefferson suggested that the policy of low-level anxiety, often seen in educational settings, could be adapted to workplaces. This policy will allow employees to report behavior that makes them uncomfortable, without reporting rules. Monitoring these reports can help employers deal with low-level behavior patterns before they escalate into more serious incidents.

Actionable steps

The new guidance outlines a number of key steps employers can take to comply with the statutory duty. Jefferson noted that conducting a risk assessment is an important first step in identifying factors that may increase the likelihood of victimization. Employers should consider consulting with unions or employee representatives to understand perceived risks and develop a plan of action.

Establishing and regularly updating an anti-harassment policy is also important. This policy should be communicated to employees, including new hires at the time of induction, and made accessible to non-employees.

Jefferson advised employers to consider whether the policy should be shared with contractors or published on the company's website to demonstrate a commitment to safe workplace practices.

Engaging with employees through surveys, focus groups, and open-door policies can help employers understand where potential problems are and assess the effectiveness of their prevention measures. According to Jefferson, ongoing engagement is necessary, with employers always on the lookout for warning signs such as increased absenteeism or changes in behavior and performance.

Training and compliance with the law

Training remains the cornerstone of abuse prevention. Jefferson emphasized that employers should conduct regular training sessions to ensure that all employees understand the company's policies, are aware of what harassment means, and know how to report it. Training should also address third-party abuse, and may require programs tailored to different senior levels or departments.

The guide also warns against overuse of privacy clauses. Jefferson emphasized that these clauses should only be used when it is legal, necessary, and appropriate, as they should not prevent employees from speaking out about abuse.

Employers are encouraged to address power imbalances and cultural issues in the workplace by assessing culture and implementing programs such as internal campaigns or appointing harassment champions. According to Jefferson, a strong message from senior leaders can strengthen an organization's commitment to addressing abuse.

The new statutory duty is likely to lead to an increase in claims, with recent data showing a 46.5% increase in Employment Tribunal cases relating to sexual harassment since 2019. Jefferson advises employers to keep detailed records of all actions taken to prevent harassment, as this can help. as evidence of legal compliance in the event of a legal dispute. Appropriate documentation can help protect organizations from liability if they can demonstrate that appropriate steps have been taken.

Jefferson said that while compliance is important, the broader goal of employers should be to promote safe and inclusive workplaces.

“Employers need to introduce systemic changes not only to reduce the risk of claims but to create safe, positive, and inclusive workplaces.

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