Sexual harassment in the workplace

The new Worker Protection Act has strengthened existing protections for workers against sexual harassment in the workplace.  In this blog we explore the challenges employers face and what steps they should be doing now.

What does the Worker Protection Act cover?

The new law, which comes into force on 26th October 2024, imposes a greater duty on employers to take ‘reasonable steps’ to prevent sexual harassment of their workers by colleagues in the workplace. Employers that are found to have breached this newly strengthened duty may face tribunals with the power to increase a compensatory awards by up to 25%.

Employers may feel that they have policies in place to deal with a complaint. This may include whistleblowing reporting measures and nominating specific people a complainant can speak to. They may even have a ‘zero tolerance’ approach which is mentioned in such policies and values. But is this enough?

There have been numerous high profile cases in the media where well-known organisations that perhaps didn’t know or think to ask the right questions or mishandled situations entirely. When an organisation gets it wrong the damage, reputationally, financially and the impact on the individuals concerned can be significant.

What do employers need to do to protect themselves and their employeesagainst sexual harassment in the workplace?

The Worker Protection Act has been the subject of significant debate during its development with two key changes along the way. When originally drafted, it was proposed to say employers must take ‘all reasonable steps.’ Following consultation with employer groups, this been scaled back to ‘reasonable steps’. Confusingly, the code of guidance still mentions all reasonable steps. There was also a possibility that the duty to protect workers from third party harassers was going to be added back into the legislation. This was dropped and is not included. however third parties are still mentioned in the Code of Practice.

Challenges protecting against sexual harassment in the workplace

Every organisation will face challenges implementing the Worker Protection Act. A focus group led by ACAS reached the following conclusions.

• Ingrained behaviours that aren’t challenged. This can be reflected in attitudes. Examples include ‘oh that’s just how X is’ or ‘they are just a bit quirky they don’t mean anything by it’. For employees to feel comfortable there needs to be a psychological ‘safe space’ that enables and empowers individuals to call out behaviours. This will allow people to come forward if behaviour concerns them. It also reassures employees that their concerns if raised will be listened too and treated seriously.
• Sticking to your word. If an organisation says they have a ‘zero tolerance’ policy against sexual harassment in the workplace but takes no action then, trust in the process will be lost.
• Clear roles, responsibilities and accountabilities. It is important that employers provide a listening ear and carry out specific roles in the process. Nominated contacts must have a clear understanding of their role and responsibilities, and also their boundaries. Without clear guidelines this can risk becoming a tick box exercise and tokenism. This will erode faith and trust in the process.
• Ambiguity and confusion around who to report concerns to. This is less of an issue for smaller organisations. Larger organisations and particularly multi-site and even multi-country organisations the focus group acknowledged that a clear line or sight for reporting was a common/shared challenge. This may result in genuine concerns not being reported. The process needs to be simple and easy to follow, and result in action.
• The focus group observed that “women who are the victims of harassment are more than likely to leave the organisation within 18 months, no matter the outcome of the complaint”. This is not surprising but a shame. It can be a difficult process to go through. What happens next also plays a role in this. Colleagues become aware of the issue, no matter how much you try and maintain confidentiality. Employees may have been taken through a disciplinary process,. All of this means that the workplace may simply not feel the same for the complainant anymore.
• Finally, a shared challenge highlighted that money is perceived to outweigh people which stops problems from being aired. Some of the examples provided in this were that boards didn’t give HR a seat at the boardroom table. Superstars can go unchecked even if their behaviours don’t match up to required expectations. Employees/complainants need to know and trust that behaviours will be called out and won’t go unchallenged, just because someone brings in more revenue or clients/customers like them.

Why is it important to take reasonable steps to prevent sexual harassment?

Obviously this is a good thing for all employers to do. However, it also makes financial sense. Discrimination claims have uncapped awards and tribunals can add a 10% compensation uplift if they don’t believe an employer has taken all reasonable preventative steps.

Recommendations for employers

The focus group worked on a number of ideas of what boards and organisations could do differently to support complainants and employees in workplaces. What is reasonable will depend on the size and resources of the employer, the nature of the working environment and associated risks including contact with third parties.

There top three recommendations were:

1. If you say you are going to do something, then do it. It is better to try and do the right thing than do nothing.
2. Communication and employees feeling heard, and that they have a voice was another key recommendation. It suggested that there needed to be a much better understanding at board level of the challenges employees face and a commitment to listen and act either when direct complaints are made, or when information through other means such as surveys, pulse points, check-ins and polls suggest a problem may be bubbling away under the radar and an organisation must make the decision to step in anyway because their duty of care is alerted.
3. Businesses should consider how they can measure and collect insights/information on the scale of the issue and/or whether an issue is developing or do a temperature check on the organisation and its culture:
   a. They could look at stats on complaints and what they were about,
   b. Ask HR to report concerns raised and the topic of the complaint,
   c. Look at settlement agreements and NDAs processed during the last year and what they covered,
   d. Carry out staff surveys, polls, touch points and check-ins to check trust and confidence in who to go to and that complaints will be effectively managed,
   e. Conduct reviews of exit interviews, and
   f. Consider gender based turnover data calculations.

All of these measures can support organisations to make informed decisions about the work they need to do to build great support mechanisms and processes.