From October 2024 the Worker Protection (Amendment of Equality Act 2010) Bill will strengthen existing protection for workers against sexual harassment. This will place a new duty on employers to take ‘reasonable steps’ to prevent sexual harassment. Tribunals will have the power to increase compensation by up to 25% if they find an employer has breached this duty.
We talked to an expert in order to put together some guidance for you.
Inspired by the famous Gandhi quote, ‘be the change you want to see in the world’, Snéha Khilay, 10Eighty’s D&I specialist has developed expertise on diversity, inclusion and management/leadership development over the past 25 years. She conducts training programmes on Maintaining Respect and Dignity in the Workplace and has undertaken some high profile independent investigations into allegations of bullying and harassment. Some of the cases have gone to Employment Tribunal and in every instance, her findings have been aligned with the decision made by the Employment Tribunal panel members. Snéha is committed to improving understanding and effective communication between people within the business world.
The impacts
Sexual harassment may be defined as ‘unwanted verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of violating the recipient’s dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for the recipient’. Sexual harassment in organisations is, sadly, widespread with over 60% of women in the UK experiencing it during their lifetime.
The negative impacts on both employee and employer can be far reaching. Those who report sexual harassment are likely to experience both mental and physical health issues and are also likely to report losing confidence and experiencing negative emotions such as anger and fear.
The impact on the organisation is also significant, with lower job performance and job satisfaction, lack of commitment, absenteeism and resignation the direct result of sexual harassment. The issue will break trust and respect between colleagues. The damage caused to an organisations’ reputation should not be under-estimated, and a poor reputation will impact on recruitment, retention and talent management, public relations and shareholder decision-making.
In the real world
Organisations that fail to address harassment are likely to experience significant loss of reputation, financial penalties and personnel issues such as reduced team cohesion, job engagement and commitment leading to detrimental impacts on operational effectiveness.
Once described as the most powerful business lobbying group in the UK the CBI has seen an exodus of fee-paying members, the resignation and replacement of their CEO and an overhaul of HR processes. They faced allegations of sexual harassment, assault, and rape, and were criticised for the handling of these claims. The Guardian reports that the CBI has used gagging clauses to prevent staff from discussing their experiences of sexual misconduct and bullying at the organisation. Those agreements were accompanied by substantial financial settlements from the CBI; the total bill could be as much as £1m, accounting for legal fees, settlement deals and pension agreements.
A couple of years ago an Employment Tribunal awarded over £2million in a case against a foreign owned bank operating in the City. The claimant was successful in claims for equal pay, sex discrimination and victimisation which included derogatory and demeaning remarks from managers and colleagues. The employment judge, criticised the claimant’s bosses for acting “spitefully and vindictively” and increased the compensation because the bank failed to apologise and failed to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures. The complainant now campaigns on equal pay and other issues.
As to the effects on those who experience harassment, almost anyone you know could offer at least one example. The worker in a team of older colleagues who experienced pointed comments after returning to the office from the gym, some of the comments were a cause for concern but responsibility was shirked, it was banter, it was joking. The junior office admin who experienced unwanted physical contact, from a member of the leadership team at an after-hours leaving party, too scared to complain. The MD who approached a direct report staff member with an unwelcome proposition, excusing the conduct as due to drunkenness and going through a tough divorce.
Taking responsibility
We kept our examples gender neutral, that’s because sexual harassment is an issue for all employees. If you are not sure that what you see in the workplace is harassment then ask yourself:
“Would this person be treated this way if they were of the opposite gender?” and “Would I want my child, sibling, spouse to experience to this?”
This is about stepping into the small moment when respect is not shown. Culture matters and leadership need to offer an environment where everyone takes responsibility for ensuring everyone is included and respected, where managers take responsibility, really listening and responding effectively on these issues. When harassment is nipped in the bud, it affords a zero-tolerance environment with safe boundaries, where employee concerns are taken seriously.
It’s important that everyone is accountable for engaging with the issues to the same standard, around the whole spectrum of sexual harassment from unconscious bias and inappropriate banter to unwanted touching – encouraging a culture where everyone takes responsibility for managing power dynamics and changing norms. Training, coaching, awareness and transparency can make a real difference.
Addressing the issue
Ensure a clearly defined policy around inappropriate sexual behaviour and communicate widely, making the consequences of non-compliance obvious. Individuals need to be aware of how such behaviour impacts on those around them and understand that they need to take personal responsibility and are empowered to do so.
The effect on the day to day experience of affected employees, whether excluding them from conversations or making assumptions about them, is divisive. The drip-drip-drip effect of stereotyping where employees are treated badly, and leaders see it but do nothing is corrosive to the employee experience. The standard where you take no action is the standard that you accept.
Victims experience a detrimental impact on their sense of self and personality, their productivity and engagement and at a personal level, emotions such as anger, shame, and withdrawal can affect a person for many years, knock their confidence and fill them doubt and anxiety. Employees who witness inappropriate interactions and behaviours will also be adversely affected; it creates a toxic environment for those who see colleagues being abused and demeaned.
Acting on the issue
Transparency in a complaints and disciplinary process will deter inappropriate behaviour and encourage those who lack confidence to speak up. Training for leaders and managers should ensure they are able to lead by example, to implement the policies and know how to handle incidents of sexual harassment. Ensure clear reporting channels for complaints and respond promptly, fairly and thoroughly. Evidence of discriminatory behaviour or harassment needs to be investigated and acted on swiftly with a clear message sent out that such behaviour will not be tolerated.
There should be regular training sessions for all employees so that they understand what sexual harassment is and their role in preventing/addressing it. Coaching can help employees who have difficulty engaging with the topic.
Corporate leaders have a defining influence on working culture and set the tone for expectations around behaviour and workplace civility. They need to embed and demonstrate the values and behaviour that underpin dignity, respect and inclusion. Think in terms of a mindful culture that sets appropriate professional boundaries, offers training and outlines clear and transparent policies and procedures. Apologies only go so far – we need to reflect on what is the learning from a given situation and resolve do better in the future.
Why it matters
Every business has different weak areas where harassment may be more likely to occur. It will be helpful to risk assess whether there are individuals or particular groups who are at more risk of harassment than others, or perhaps of perpetrating it, and take steps to reduce that risk.
A prudent employer takes measures to prevent workplace discrimination and harassment, but we know that organisations that still get this wrong; they find themselves blindsided when allegations are made, and sexual harassment is exposed. Despite the efforts of HR professionals, many senior executives don’t take the issue seriously and the reputational damage can be huge.
If ingrained behaviours aren’t challenged, it means workplaces don’t create a psychological safe space which allows all employees to be themselves and reporting can be problematic. Trust in an employer is easily damaged – employees who are victims of harassment are more than likely to leave the organisation within 18 months, no matter the outcome of the complaint.
The legal changes
There needs to be a greater awareness amongst employers of the consequences of not complying with their statutory equality obligations in relation to sexual harassment.
The Act:
- introduces a duty on employers to take reasonable steps to prevent sexual harassment of their employees;
- makes provision about the enforcement of the employer duty;
- provides for a compensation uplift in sexual harassment cases where there has been a breach of the employer duty;
- makes consequential amendments to the Equality Act 2006
Where an employment tribunal finds that there has been a breach which involved, to any extent, sexual harassment, the tribunal must consider whether and to what extent the employer has also breached the duty to take reasonable steps to prevent the sexual harassment of their employees.
If the tribunal finds that the employer duty has been breached, then the tribunal may order an uplift to the compensation awarded in respect of the sexual harassment claim.
Evidence is key!
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 need to show evidence of the reasonable steps taken.
Steps that will help:
- Establish a reporting mechanism for sexual harassment, keep it updated.
- Ensure employees are aware of anti-harassment policies and know how to speak up if these are not followed by others.
- Provide training for employees on harassment, ensure those who witness harassment know how to help and support those affected. Training needs to be more than just a ‘tick-box’ exercise, as this is unlikely to be seen as a reasonable step at tribunal.
- Ensure risk assessments are carried out to identify and mitigate risk factors.
- Ensure an effective system whereby employees can report sexual harassment, and ensure all complaints are investigated appropriately, even if they didn’t happen recently.
- Take into account third parties, even though it isn’t explicitly mentioned in the legislation. Preventative steps targeted at third parties could be put in place such as displaying zero-tolerance notices, inserting terms in supplier contracts requiring compliance with anti-harassment policies, and introducing penalties for third parties who harass employees.
Further information:-
Gov.uk https://www.legislation.gov.uk/ukpga/2023/51/contents