all you need to know – Daily Business Magazine

Employers must prepare for a significant amendment to the list of preventative actions they must take, writes KAREN HARVIE

Action that employers must take to prevent sexual harassment at work is about to become more onerous, thanks to the addition of a short but important word change. Currently, they are legally obliged to take “reasonable steps”, such as having a policy in place and undertaking regular staff training. From 30 October it becomes “all reasonable steps”.

This substantially changes what a tribunal will require an employer to demonstrate to avoid a 25% uplift in damages in a successful sexual harassment claim. This effectively means an employer must show there was nothing else it could reasonably have done.

Examples of what the tribunal may additionally require include risk assessments, formal reporting procedures, a process and training for managers handling such complaints and a ‘lessons learnt’ analysis of actual complaints and outcomes.

This month’s changes include the reintroduction of liability for discriminatory harassment by third parties, directly enforceable by employees, including customers, clients, contractors and suppliers. If someone from outside your business harasses a member of your staff, or a client or customer, and you haven’t taken all reasonable steps to prevent it, you are exposed.

For a business with a human resources (HR) team and an in-house lawyer, this is a sizable task. For a small to medium-sized business with no HR function, it can feel extremely daunting. In reality, it can be addressed with a short list of practical steps.

The first job is to undertake a risk assessment.

A shop, a building site, an office and a bar all carry very different risks. Staff facing the public and in social environments will need different protection than staff who are desk-based and in a small team. Junior staff, staff working alone, staff dealing with drunk or difficult customers: these are the groups worth looking at first when you consider your organisation’s risks.

Once you know where the risk sits, you can use that knowledge to shape the policy and staff training materials you’ll need to have in place.

Most employers already have some form of anti-harassment policy, often folded into a wider conduct document. That is a good start, but it isn’t a defence on its own.

A tribunal wants to see that the relevant policy is embedded in day-to-day procedures, not just filed away. That means regular manager and staff training rather than a presentation shown once at induction and never revisited. Managers need to know how to handle a complaint appropriately instead of quietly letting it drop – and staff need to trust the process enough to use it.

The Equality and Human Rights Commission publishes an eight-step guide to preventing sexual harassment at work. It’s free, and for a business starting from scratch, it’s the right place to begin.

Some employers may not be aware that third parties such as suppliers or customers are about to be their responsibility, too.

This is the part that will be most difficult for SMEs. If a customer harasses one of your staff and you haven’t taken reasonable steps to prevent it, you can be liable, even though you don’t employ the person doing the harassing.

Your staff need to know they don’t have to put up with harassment, and they need a fast, obvious and clearly understood way to flag it to a colleague or manager. In hospitality especially, you can expect to see more “we will not tolerate harassment of our staff” signage over the next year. That is a direct response to this legislative change.

If you are using a third-party supplier for an event, make sure that sexual or other discriminatory harassment is covered in the contract. This could take the form of a non-discrimination clause, a requirement that they share their own policy, or agree to work under yours. It’s a small addition to your existing contract, and it puts the responsibility where it belongs.

If there is a complaint, it must be handled properly, not brushed off. Your relevant procedure must be followed and recorded.

The most common mistake we see is employers trying to make a complaint disappear instead of dealing with it. “It was his word against hers, so there’s nothing we can do” isn’t a defence and often, it’s not true.  There are often witnesses, as well as a pattern of behaviour that nobody has noticed until there is an investigation.

Karen Harvie is a senior associate in employment law at Aberdein Considine

Related