From the 26th October 2024 a new proactive duty to prevent sexual harassment comes into force and will apply to all employers regardless of size.
In this episode 233 of the podcast I bring you all the detail about the change in the law as well as my advice and recommendations on what employers should be doing to ensure compliance. In this episode we cover:
- What the new legal obligation means.
- The consequences of not complying with the new obligation.
- The steps that employers should take to ensure minimum compliance.
- Why an annual review is needed.
- Why training for managers and all staff is important.
Training for your Team
Would you like to arrange training for your team to reduce the risk of both unhappy employees and claims being made against you? Please get in touch for a no obligation discussion, we can offer training anywhere in the UK in person or delivered remotely via MS Teams.
Please drop me an email alison@realemploymentlawadvice.co.uk
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As part of our HR Harbour annual subscription service for employers we provide guidance and training for employers, supervisors and managers. If you would like to know more about the HR Harbour Service and how you can get unlimited support from as little as £210 per month please contact me for a no obligation discussion – alison@realemploymentlawadvice.co.uk or you can find full details here: HR Harbour
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Welcome to the Employment Law and HR podcast with your host, Alison Collie. Hello, and welcome to this episode 233 of the Employment Law and HR podcast. I'm your host, Alison Collie. I'm an Employment Solicitor and HR Specialist, and I run the firm Real Employment Law Advice where, together with my colleagues, we provide advice and assistance to both employers and employees on all aspects of employment. Our flagship service is our HR Harbour Membership Service, where, for a monthly subscription, businesses and organisations can have access to unlimited advice about employment law and HR. And now is no better time to sign up for a subscription service such as our HR Harbour, with all the changes that are going to be taking place in the very near future to employment law. There are going to be lots of things that you need to keep up to date with, lots of changes to your policies and procedures, and therefore, if you have access to a subscription service such as that that we provide, you will have that peace of mind to know that you are covered. So if you're planning ahead and you'd like more information about the services that we can provide to help you, then please don't hesitate to get in touch. My email is allyson@realemploymentlawadvice.co.uk. So in this week's episode, as I alluded to in the introduction, I'm going to be talking about some of the changes that are coming up in relation to employment law in the very near future. So without further ado, I'm going to get into this week's featured content. So those of you who listen regularly to the podcast and keep an eye on what's happening with employment law will know that there is a change coming to sexual harassment laws from the 26th of October, 2024, so just around the corner. Now in episode 218 of the podcast, I went into more detail about this. That was back in November of last year. And what I want to talk about today is just to provide you with a quick overview and update so that you're aware of the impending change. Now it's really important that all employers are aware that they need to make steps or take steps to prevent sexual harassment. Now this is an obligation that applies to all employers. So it doesn't matter if you think I've only got a small team, there's not likely to be any issues, you know, we haven't got any problems with harassment, everybody knows how to behave, that's all well and good and it might very well be the case. But if in future you need to defend a claim or provide evidence to the employment tribunal or about what steps you've taken to comply with a new legal obligation, if you haven't done that, you're going to be in a very difficult situation when defending a claim and have to answer some difficult questions. Furthermore, the Equality and Human Rights Commission are going to have the power to take action against organisations that haven't complied with their obligations here. So it could impact you both legally and financially but also reputationally. If you're that organisation who can't show what they've done to take proactive steps to prevent sexual harassment and protect their workforce, it's not going to look great for you. It also anticipates that in terms of awarding contracts or applying for tenders and that sort of thing that some large organisations, local authority, government agencies are going to be asking questions of organisations about what they're doing in relation to ensuring that sexual harassment isn't taking place and is prevented within the organisations. So there are a whole host of reasons why you need to take this seriously and to listen carefully to what I'm going to say in this week's podcast. So the preventative duty applies to all employers from the 26th of October 2024. And what this means is that you have to take reasonable steps to prevent sexual harassment from occurring in your organisation. Now there is no legal definition of what reasonable steps are, there is some guidance and obviously some thought out there about what this would include, but nothing set out and look. So it will come down to the individual organisation, the size and resources of that organisation and the individual risks in relation to that particular organisation and employer. And these kinds of things will be taken into consideration by the employment tribunal when deciding cases and trying to establish if that employer has taken reasonable steps necessary under the legal obligation. So what does it mean in practice? It means that if you don't take those preventative steps and you find yourself on the wrong end of an employment tribunal claim for sexual harassment, that compensation can be increased by up to 25% for your failure to take those preventative steps. Now moreover, as I alluded to earlier, there are other reasons why you'd want to do this. So reputationally, but really importantly, from a moral perspective, as an employer, you have a duty to safeguard your employees and ensure that they are safe and working in an environment which is happy and not causing them harm and one of the things that you need to do is ensure that they are not in a situation where they could potentially be sexually harassed. So in the absence of any legal definition of what reasonable steps are, what should you be doing as an organisation? Well, at the very minimum, my view is that every employer should be undertaking a risk assessment in relation to the risks around sexual harassment in their organisation. The risk assessment that you undertake will set the foundation for the next piece of work that you're going to be doing, which is looking at your policies and procedures and how you communicate expectations to employees. So undertake a risk assessment and then look at your paperwork. Now in many organisations, there will be an anti-harassment and bullying policy within the staff handbook. Now if this is the case, then it will be worth having a look at that to see how extensive it is in covering sexual harassment. If you don't feel that it is enough, then you may wish to include a separate sexual harassment policy and in fact, my advice would be to remove the sexual harassment references from your anti-harassment, bullying policy and create a separate sexual harassment policy that is cross referred to in that anti-harassment and bullying policy that you already have. It's important that you communicate that new policy to all employees and contractors and people that you deal with on a regular basis within your organisation to ensure that everybody understands exactly what is required of them. It's not enough merely to put the policy in your handbook and tell everyone that it's there. My advice would be in order to have that evidence to show that you're taking those proactive steps, that you ask everybody to sign to say that they have read and understand a copy of the sexual harassment policy. You can do this by way of a simple document that you are sent to sign, or you can do it electronically, or you might already have some form of system in your HR software that you can use to show that it has been read and understood, but you need to make sure that it is communicated to everybody. And that policy needs to be reviewed on a regular basis, so if your business or organisation changes substantially or the potential risk of sexual harassment change, then you need to review it. But if there are no changes throughout the course of the year, then I would strongly recommend that you undertake it with you at least annually and then share that policy again, every year, with employees, again getting that confirmation that they have led from understood it. The next steps following on from that would be to communicate your stance on sexual harassment to all members of your team, all employees, all contractors, anyone who might work with you on a regular basis so that they understand exactly what is expected of them, and how you would deal with sexual harassment claims. Now that is the very bare minimum that I think employers should be doing. The next steps are to ensure that all managers and supervisors and those people who are in charge of teams have some training that is focused on sexual harassment, so they understand exactly what sexual harassment is, how it occurs, what the legal obligations are, but also how to spot things when they are happening, how to create the culture and lead their team appropriately in their own behaviour. And then what to do if somebody discloses that they are being sexually harassed, how that should be dealt with, and the investigation process and handling of that. So managers should have some extensive training in relation to this to ensure that they fully understand what is required. Then I would also recommend that employees have some form of awareness training, so everyone who works within your organisation has that little bit of knowledge about sexual harassment, so they understand exactly what the legal obligations are, what constitutes sexual harassment, and when it might occur. The reason for this is because there are so many misconceptions or misunderstandings about what actually constitutes sexual harassment. I was delivering an awareness session today on this topic, and someone mentioned about intent. They said, "Well, we had a situation where somebody did something but they didn't really intend to harm the other person, it wasn't their intention to cause offence in relation to what they had done." If that conduct causes the other person to feel humiliated or degraded in any way, regardless of the intent, then it will still constitute sexual harassment. So this is just one of the misconceptions about sexual harassment. Another one is that people often think that there has to be more than one incident sexual harassment, or that the individual who is the victim of sexual harassment has to tell the perpetrator that they didn't want it to happen in order for it to be sexual harassment if it continues. Those are both misconceptions about sexual harassment. The other thing to keep in mind, and another reason to have this awareness training for employees and your organisation, is because many organisations have multi-generational staff where people's sensitivities and expectations of behaviour are very different. So it's important that you're communicating the same message across the board so everybody understands what is acceptable behaviour. Now, as I say, you may not have a problem in your organisation at all. You may feel that everybody understands the position, everybody understands what's acceptable behaviour, and that's fine, but, as I say, it's going to be very difficult for you to be able to evidence that if you haven't undertaken some form of awareness training with individuals to deal with this, and that you can then produce that as evidence to the requirement troubling should you need to, or to the Equality and Human Rights Commission for deciding to investigate your organisation. And then finally, in relation to training, notices, all of those sorts of things, these should be revisited and addressed on a regular basis, either when things change or something happens or on an annual basis at the very least to ensure that you're continuing to comply. It's no good doing a flurry of activity now to comply with your obligations and then not doing anything for several years. It would be, again, quite difficult to convince the employment tribunal that you have taken or reasonable steps if you haven't done anything for several years and it's just sort of sat there. Nobody's actually revisited or looked at it again. So, in summary, my advice in relation to the change in the law and relation to sexual harassment is you need to take action regardless of the size of your organisation, regardless of how well your culture is or how well you think everybody gets on. It's important that you do take proactive action to address this issue and comply with the legal obligation as soon as possible. My advice in relation to the steps that you should take is, one, undertake a risk assessment to identify where the risks are in relation to sexual harassment; two, communicate your stance and policy on sexual harassment by way of a policy; three, ensure that everybody is aware of the policy and also your position by issuing a notice to all-star; train your managers so that they understand exactly what their obligations are in relation to sexual harassment and the reporting and dealing with any complaints of sexual harassment. And then, finally, I recommend that all employees have some awareness training so they understand what sexual harassment is under the authority act and what the risks are if they behave in a way which is inappropriate. Now, if you need any help with any of these things, we have put together some comprehensive documentation for you which you can download as a DIY product from our website, so if you go to realimformaterevice.co.uk/diy-documents/ you will find all of the documents that I refer to here and templates for you to use. You can download those for a fixed fee and do it yourself. Alternatively, if you'd like some help putting together some bespoke documents for your organisation, or you just don't know how to start with your risk assessment and you want someone to help you with that, then please don't hesitate to get in touch. My email is alison@reelimformaterevice.co.uk and then in relation to training, we are offering a number of online training programs for managers and employees. Again, you can find all the details on our website, realimformaterevice.co.uk and if you search sexual harassment, you'll find the details there and I will put the details in the show notes for this podcast. Finally, if you would like all of this to be covered for you, you want everything done and you want to have access to training, then you can join our HR Harbour subscription service. If you were to join as a gold member or a platinum member, then you would find all of the documents that I refer to today which be included for you and we also have various training programs running for our members and their managers so that you can get access to those. If you'd like a new obligation quote, you can contact me by email, it's alison@reelimformaterevice.co.uk. Thank you very much for listening today. I hope you found it interesting. If you are doing anything that I haven't covered in relation to your duties of preventing social harassment and you'd like to share that with the podcast audience, then please do get in touch. I'd love to hear from you and to hear what you're doing to ensure compliance with the New York. Thanks very much and I hope that you have a fantastic two-week set. Thanks again for listening. Just want to finalise by saying I wouldn't be a lawyer unless I had a legal disclaimer, so I must just say to you that the information in this podcast is for information only. It's general review and a general update. It's always necessary to get specific legal advice about your circumstances, so please don't rely on anything that you've heard in this podcast, but please do feel free to contact me if you'd like further information or specific advice.
