A positive duty to prevent sexual harassment

Employer responsibilities 

The new law requires employers to try to prevent sexual harassment, but the exact rules are still unclear. Further guidance is expected from The Equality and Human Rights Commission (EHRC) however, what is clear:

• Employers have a “positive duty” to protect staff from sexual harassment. This means they should be actively trying to prevent it from happening.
• Employers need to take “reasonable steps” to prevent harassment (no clarification yet given)
• It used to say “all reasonable steps,” but the law changed. This likely makes it a bit easier for employers to show they’re following the rules.
• We don’t know exactly what the new rules will mean in practice.

The new law initially aimed to address harassment by third parties (eg customers or vendors), but that part didn’t make it into the final law. However, the law does use broad language such as “sexual harassment in the course of employment,” which might still include situations with third parties.

A few notes relating to third party harassment

• If an employee succeeds in the Employment Tribunal with a sexual harassment claim, the court can increase the compensation by up to 25% if it takes the view the employer didn’t try to prevent it. This applies even if the third-party harassment wasn’t the main part of the complaint.
• Employees can’t directly sue their employer for failing to prevent third-party harassment. Only the EHRC can take such legal action.

Actions

• Identify areas where harassment might be more likely to happen.
• Review existing policies and procedures to make sure they’re clear and effective.
• Check you have strong anti-harassment policies and procedures.
• Raise awareness about what harassment is and how to report it.
• Regularly check understanding and confidence to use your policies/guidance.
• Offer practical, supportive training for employees and managers on topics such as:
  • What does harassment look and feel like in your organisation/sector.
  • How the law defines harassment and how different generations might interpret harassment.
  • Practical steps to prevent harassment and practical advice to ensure we ourselves are not unintentionally seen as someone who is harassing a colleague.
  • How to not be a bystander as you progress through your career.
  • Having the confidence and ‘words’ to speak out when you see something wrong.
  • Having the knowledge to speak out in a way that manages/minimises stress and conflict without undermining your right to address important issues.
  • Supporting colleagues who may struggle with assertiveness or not know how to speak out.
  • Awareness of those who might be most vulnerable or exposed to harassment in our workplace and strategies to ensure they are as protected as they can be.
  • Guidance for outside the workplace events and socials.
  • For managers – how to create a culture of respect where issues are picked up quickly and team members all take responsibility.

Creating a respectful environment

A few words from Helen Jamieson, Director at Jaluch, on this challenging and sensitive topic….

There is no point ever in alienating staff by delivering training that makes those attending feel like naughty children. If you’re putting training together aim always, with no exceptions, for adult language and an adult approach to education, after all you do employ adults!

We can all learn together, explore together the difficult concepts, and share together our different experiences and perspectives without any need for the blame game, conflict or ‘preachy’ training.

What you need is a great facilitator, content that encourages discussion and sharing, a safe space where no one, absolutely no one, will be refused airtime or later disciplined for sharing their thinking or feeling. You also need strategies to diffuse heated debate so you can have an adult debate, an understanding of how conflict arises and a means of setting the right tone for the training in the first few minutes so the whole session runs smoothly for all.

Having some in the room and some online for a difficult topic seldom, if ever, works well in my experience. Don’t be tempted to go there. Also, the smaller the group the better. 10-12 is a great size group. Giving the facilitator the option to ask someone to leave the session if they are unable to be professional in their approach to the discussion is also useful. This is of course a last resort.

We all need to remember that we are all complex human-beings and it is seldom the case that anyone sets out to do harm, so let’s learn together, discuss together and take the time to understand this topic and, within that, our own personal role and responsibilities.

How we can help

• Employment Law training sessions for your HR team and line managers.
• Respect in the workplace training.
• Diversity & Inclusion training for all staff.
• Coaching on dealing with conflict and difficult conversations.
• Train the trainer sessions and training kits for your trainers to roll out ‘Managing Discipline’ and ‘Diversity and Inclusion’.
• Relevant Policies, Guidance, Letters, Forms – available on DocsWizard through a low cost annual subscription model.
• Pragmatic and no-nonsense HR advice and support from our team of experienced consultants including guiding or leading complex grievance investigations and handling disciplinary matters.

With Jaluch, no onerous or long-term contract is required as we have a pay-as-you-go option which can be very quickly set up so there is no delay in us giving you the support you need. Why wait? If you would like to discuss any of the above further, then please don’t hesitate to get in touch.