Sexual harassment risk assessment vital for reasonable steps defence

In October 2024, a new duty was placed on employers to take reasonable steps to prevent sexual harassment in the workplace.

Practical guidance was produced by The Equality and Human Rights Commission at the time to assist employers with their obligations.  This guidance made clear that employers will be unlikely to demonstrate compliance unless they have carried out a risk assessment considering the risks of sexual harassment occurring, the steps that could be taken to reduce these risks and which steps would be reasonable for the employer to take. Clearly, it’s sensible for employers to record this in writing so they can evidence their compliance.

A risk assessment is even more important now in the face to the increased duty coming under the Employment Rights Bill for employers to demonstrate that they have taken, not just reasonable steps, but ‘all’ reasonable steps.

There’s no shortage of surveys showing how prevalent sexual harassment at work is and how workplaces are falling short in their protection and support of workers:

• A survey of 2,000 employees in Wales by Censuswide found 43% of men and 48% of women experienced sexual harassment in the workplace.  1 in 10 of the respondents said their workplace either had no formal sexual harassment policy or they were not informed of a policy in place.
• A survey by Unite found that 25% of respondents had been sexually assaulted at work, travelling to work or from work or by a colleague (in or outside of work).   Only 26% of respondents felt their employer had done enough to promote a sexual harassment zero-tolerance culture within the workplace.
• Findings from the Skills and Employment Survey (produced by academics from Cardiff University, UCL, Nuffield College, Oxford, and the University of Surrey) found that more than one in seven UK employees had experienced some form of workplace abuse. It found that sexual harassment was endured most by women and by LGBTQ+ workers.

Many employers find this a difficult area to navigate but it is one that could be costly if insufficient steps are taken.  An employer who breaches this duty can face enforcement action from the EHRC and, if an individual succeeds in a claim for sexual harassment, any compensation the employer is required to pay can be increased by up to 25%.   Unfortunately, it is going to be much harder for employers to successfully defend a sexual harassment claim when the new provisions under the Employment Rights Bill come into effect.

Our expert team at Clarkslegal can help you in identifying risks, preparing your risk assessment and developing an action plan to tackle any gaps identified.  We can also help you:

• Create/update policies: You need to have effective and well-communicated policies in place.  Workers must be able to understand what sexual harassment is, what they do if this happens and what you will do.  This includes your anti-harassment policies but also wider policies that may interact with this such disciplinary policies.
• Assess current procedures: These should be updated to reflect best practice.  Workers must be aware of how to report harassment and what you will do once a report is received but you should also consider wider measures that may be necessary, such as having dedicated support available or an anonymised telephone reporting line.
• Provide training: Training should be provided to all staff to raise awareness of their rights, your expectations and anti-harassment policies.  You may need to consider more specific training for managers (to support them in identifying and dealing with complaints and supporting workers) and those conducting investigations taking into account the nature of the particular complaint.  Refresher training should also be provided at regular intervals.  This training should be tailored to the nature of your business and risks involved and, if third party harassment is identified as a potential risk, training on how to address these issues should be provided.
• Create effective feedback Mechanisms: You should consider how your policies and practices can be evaluated, for example via staff surveys or employee forum feedback.  You should keep centralised records that record the complaint in enough detail that trends can be identified.
• With communications/drafting with third parties: If your workers come into contact with third parties or agents of yours then you will need to consider whether to send these persons a communication to advise of the company’s stance on tackling sexual harassment and that it will not be tolerated. You may also want this built into your commercial contracts with these parties if it is not already.

Please do not hesitate to get in contact with our team today.