Sexual harassment at work: employers’ new duties

In the UK, 5% of people aged 16 and over have reported experiencing at least one form of sexual harassment within the last 12 months. Over a quarter of those say sexual harassment took place in the workplace. This type of insight has led to a strengthening of protections for workers against sexual harassment, through the Worker Protection (Amendment of Equality Act 2010) Act 2023.

Sexual harassment can take many forms, including sexual advances, making sexual gestures, intrusive questions about a person’s private life, or a person discussing their own sex life.

>>Also read: Tinkering with design and build won’t fix anything – but alliancing can

>>Also read: What routes do contractors have to claim against cladding firms?

In construction, the perception of sexism, inappropriate behaviour and discrimination lingers. As many modern organisations strive to leave this perception behind, how the new legislation is adopted within an organisation will be a clear sign to employees that their wellbeing is important. This impacts retention as well as recruitment, and could also be a further step towards addressing the gender disparity affecting the sector.

Taking action is important

The new legislation introduces a duty for employers to take “reasonable steps” to prevent sexual harassment of employees, whether by colleagues or third parties such as customers, suppliers and members of the public. If harassment has taken place during their employment, employers do not need to have been aware of the conduct to be held liable.

What might be considered reasonable steps in prevention will vary depending on a range of factors

Where an employee has been successful in bringing a claim for sexual harassment, allegations of a breach of the employer’s duty to take reasonable steps can then be considered by an employment tribunal. At this point, if the employer is found to have breached its duty, the compensation awarded can be further uplifted by up to 25%. Given that there is no upper limit on compensation for sexual harassment, an uplift could be quite substantial.

Where an employer might look to rely on the defence that it took all reasonable steps to prevent the harassment, it should be aware that what might be considered reasonable steps will vary depending on a range of factors, including the employer’s size, sector and resources. Larger employers will be expected to do more.

Risk assessment

An employer should start with a risk assessment to consider the risks occurring anywhere that constitutes a place of work – which could include informal meeting places, networking events, even a car journey between sites – and how protections can be extended to all potential interactions.

Policy updates

With such broad application, a first point of action is updating policies and procedures to clarify the scope, the process on how all allegations will be handled and the potential outcomes, to provide a framework within which clear guidance exists on how to apply it in any arising case.

The employee handbook should be updated to cover the definition of sexual harassment and how it can be identified, how instances should be reported and to whom. It should make clear what will happen following a report, and any possible outcomes and conditions. This information should cover those who have made an allegation of first-hand experience, but also those who might have witnessed sexual harassment.

Junior staff may feel uncomfortable talking openly about an experience, in particular if the allegation is against someone senior. Having a process whereby anonymity can be protected is important in these circumstances, to ensure that there is no potential for non-disclosure of information due to fear of potential repercussions.

Training

Training for managers is recommended, so they provide the correct response to anyone reporting or witnessing events, signposting to sources of information and escalating as appropriate. There may also be a consideration for training on sensitive disclosures, as it is likely that the employee feels in a vulnerable position. Similarly, how to manage the alleged perpetrator will be important so as not to compromise the future position irrespective of the outcome.

Keeping documentation

In addition to taking the above steps, management should monitor and review the steps they have taken, the progress made, and any changes to the culture of the organisation as a result. Finally, it is vital to keep records of everything done so that this can be shown to an employment tribunal (if needed) as evidence of reasonable steps taken to prevent sexual harassment.

Ashley Scriven is a partner and solicitor advocate at Loch Associates Group