The legal change has been much debated during its legislative journey, and has undergone two significant changes. Originally, the bill was drafted so that employers were required to take ‘all reasonable steps’; some parties are unhappy with the final obligation for them to take ‘reasonable steps’. In addition, the proposed reintroduction of a duty to protect workers against harassment by third parties was dropped.
While commentators are disappointed by what they perceive as a watering down of the new preventative duty, it’s still crucial that employers are aware of its impending introduction and are geared up to comply.
The CIPD’s response to the UK Government’s consultation set out our concerns on whether a new proactive statutory duty on employers would have the desired impact. Employers are already required under the law to take reasonable steps to prevent sexual harassment of workers by their colleagues. We also made the point that much more can be done to bridge the gap regarding current law and its effective implementation in the workplace.
However, now that the new duty is coming into force, it presents an important opportunity to build awareness and encourage compliance to prevent sexual harassment in workplaces. With this aim in mind, we welcome the planned updating of the EHRC’s technical guidance and Employment Code of Practice to reflect the preventative duty.
The first step is educating and raising awareness
The first step for employers is understanding what sexual harassment is and educating their workforce. ‘Harassment’ covers unwanted conduct related to a protected characteristic which has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Sexual harassment is unwanted conduct of a sexual nature that has that effect.
The duty that would have made employers liable for third party harassment was dropped, which the CIPD thought was disappointing. However, it’s important to understand that the new preventative duty still requires employers to take reasonable steps to prevent sexual harassment by any perpetrator and that includes third parties such as customers, clients and members of the public.
How employers can prevent sexual harassment
Employers should be proactive and systematic in how they prevent and tackle sexual harassment at work: this is not a ‘tick-box’ exercise and employers will need to show evidence of the reasonable steps taken. To do so, they need to focus attention on a number of priority areas, as our guidance explains:
- Organisational and cultural change: Senior leaders have a defining influence on the working culture and set the tone for expectations around behaviour and workplace civility. They need to embed and live the values and behaviour that underpin dignity, respect and inclusion.
- Policies and procedures: A formal policy won’t change culture on its own but it’s still important to have written policies 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.
- Training and development: There should be regular training sessions for all staff so that they understand what sexual harassment is and their role in preventing/addressing it.
- Reporting channels and investigating: There need 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 and a clear message sent out that such behaviour will not be tolerated.
- People management capability: Line managers play an important role in identifying, challenging and dealing with unfair treatment including sexual harassment. They need to have the training, education and guidance to give them the confidence to tackle sexual harassment.
- Monitoring and review: Monitoring the gender diversity of the workforce at every level, including for recruitment and promotion, will help to highlight if there is any potential discrimination or harassment on grounds of gender. Staff attitude surveys will enable the organisation to collect feedback in areas like gender equality and bullying and harassment.
Wider public policy developments
The CIPD’s response to the UK Government’s 2021 consultation underlines the importance of government, regulators and other stakeholders working in partnership to ensure sexual harassment is a high priority for employers. We are concerned that responsibility for enforcement for all employment protections is too heavily weighted on individuals. It’s important that the EHRC receives adequate resourcing going forward so that it can use its unique enforcement powers to help rebalance the enforcement burden. The culture around enforcement also needs to change so that there is greater awareness by employers of the consequences of not complying with their statutory equality obligations in relation to sexual harassment.
Some regulators and professional bodies have also been taking proactive action to tackle sexual harassment in workplaces. For example, we welcome the Financial Conduct Authority’s (FCA’s) focus as a regulator in addressing sexual harassment and misconduct in the industry, including through the role played by the Senior Managers and Certification Regime. The scheme helps to reinforce the need for employers to take a proactive approach to prevent and deal with sexual harassment at work, an approach strongly advocated by the CIPD.
Final word
Although we’ve had legislation in this area for 40 years, progress is far too slow. Clearly the current law is not working effectively enough across all workplaces and we welcome the attention this new duty brings to improving the protection individuals receive from sexual harassment at work.
