From 26 October 2024, employers will be under a new legal duty proactively to take “reasonable steps” to prevent sexual harassment in their workplaces. The last two weeks we’ve been taking a closer look at what this means, sharing daily tips for employers in the lead up to this new duty coming into force.
Here’s our ten tips from our #CountdownToTheDuty series.
Tip 1: Take an honest look at the culture of your organisation
Most organisations believe that they have a good culture, where staff behave appropriately and bad behaviour would be called out. How do you actually know this, however? The fact that you may not have had any concerns raised about sexual harassment might indicate that everything is fine. On the other hand it might be because sexual harassment is normalised, staff feel it would be pointless to complain about it because nothing would be done, or they are fearful of the consequences for them personally of speaking up.
Has your organisation given a strong and consistent message that sexual harassment (and all other forms of harassment) will not be tolerated? If so, how and when? Have you set standards about what is/is not acceptable behaviour? How have these been communicated? Have you educated your staff about recognising harassment? Have you asked them if they have experienced harassment in your organisation? Do staff generally have confidence in your internal processes? How do you know this? How is the collective voice of your staff heard? Now is the moment to ask these kinds of questions. It would be well worth documenting the answers – and how you intend to address any shortcomings. An honest reflection is the best place to start, and we will be sharing more tips over the coming days to help you consider how best to plug any gaps you identify.
Tip 2: Assess your risks and reduce opportunities for sexual harassment to take place
Organisations must not only be proactive but also evidence that they have taken proactive steps to prevent sexual harassment. How can you best do this? By undertaking an assessment of the real risks in your particular business and recording the steps you will take to mitigate those risks and enact change.
Consider where your organisation may be most vulnerable and formally record the risks identified. Are there individuals who are at particular risk of experiencing sexual harassment, or are there individuals who are likely to perpetrate harassment? Is there lone working or are there roles which involve lots of travel? Are there any power imbalances? Are there roles or groups of roles which do not have job security? Are there roles which are customer facing? Will there be scenarios, either for staff or with clients and customers, where alcohol will be involved?
Once you have identified your risks, identify the steps that can be taken to minimise those risks. This may include updating policies, setting standards for expected behaviours, improving complaint mechanisms or arranging for tailored training. Record the measures that will mitigate the risks and set clear measurable timescales for them to be implemented. Finally, ensure that you set down a timeframe for reviewing the measures and recording their impact. This will provide you with a clear audit trail of how the organisation has taken proactive steps to meet the preventative duty.
Tip 3: Take a look at your policies, are these in shape?
Having clear policies and procedures in place is a key way that organisations can look to comply with the new duty, and ensuring that there are well-communicated systems for reporting and dealing with sexual harassment will lay the foundations for a culture in which staff feel they are listened to and protected.
Whether it’s revamping a current policy or starting from scratch, there are various questions organisations should be asking themselves to develop a strong policy. Is your policy tailored to reflect your specific organisation, and the type of work your staff engage in? How will staff access the policy in a way that doesn’t put them at risk of exposure? What will be the reporting lines for concerns of sexual harassment and do these ensure a victim need not report to a perpetrator? How will you support both the victim and the accused in the process? Does your policy address third party harassment, from customers, service users, members of the public? What about non-employees, such as volunteers and agency workers – what process will apply to them?
These are just a handful of relevant questions to consider when developing a sexual harassment policy. All answers should be proportionate to an organisation’s size and resources, and the nature of the working environment.
Tip 4: Carry out staff surveys… and actually get staff to engage with them
Much is being said in the context of the new duty about the usefulness of doing staff surveys to understand whether staff have experienced sexual harassment in their workplace, and whether they are or would be confident in raising concerns about it. Staff surveys with poor response rates, however, have limited value. So how do you get staff to engage with this process?
First, you should ensure that answers can be submitted on a properly anonymous basis. Often, in their enthusiasm to be able to analyse data by grade, gender, race etc, employers collect personal data in surveys to an extent that some staff members may be concerned that they will be identifiable if they submit a response.
Second, consider practical issues such as the length of the survey (staff may give up on an attempt to answer upon seeing 5 pages of questions), the timing of issuing it (relative to other tasks which staff are being asked to complete), and the frequency of staff surveys within your organisation (avoid “survey fatigue”).
Third, remind staff to complete the survey. Email reminders generally have limited effect – send diary invitations, make response rates competitive between different teams, get managers to motivate their supervisees to participate.
Fourth, and most importantly, give meaningful feedback to your staff about the results of the survey and what your organisation is going to do to act upon those results. If staff can see that their voice has been heard and that their organisation is taking action on their views, they will be more likely to engage and you will have more valuable feedback on any real issues that need addressing.
Tip 5: Ensure that the messaging about zero tolerance is coming from the top of the organisation.
It could be tempting for the implementation of reasonable steps to prevent sexual harassment to be seen as something sitting solely within the remit of HR. Whilst there is much that an organisation’s people function can and should do to meet the new duty, it is critical that the key messages are heard from the very top of the business. Words coming directly to staff from the (or a) senior leader that are not about normal operational matters have particular potency.
As we count down to the week in which the new duty comes into force, this is a good moment for the CEO (or equivalent) to prepare a message for all staff reminding everyone that the organisation has zero tolerance of sexual harassment, that staff will be fully supported in calling out any such behaviour, and that any such concerns will be taken extremely seriously. As well as referring to the formal policy under which these concerns should be raised, it would be an impactful message to say that the senior leader(s) is (are) always ready to listen to staff members about any concerns of this kind they may have. If the organisation has a notable gender imbalance (either way) at a senior level it would also be worth considering whether there is another respected colleague of the under-represented gender who would be willing to be similarly signposted as an initial listening ear for concerned staff.
Tip 6: Get the most out of exit interviews
Exit interviews offer a particularly good opportunity for organisations to get an insight into problems in the workplace, including whether sexual harassment is taking, or has taken, place. For obvious reasons, outgoing employees tend to be more honest about their experiences in the workplace compared to staff who are remaining in employment and can therefore shine a light on issues which may otherwise go unobserved. Despite this, exit interviews are often overlooked in their utility and are not well done by employers.
Some common problems are:
- they don’t take place at all, or not consistently;
- staff are allowed to opt out (it should be a requirement, and refusal to participate should lead to a conversation with the individual about why they are refusing);
- questions asked can be narrow and focused on why the employee is leaving, rather than encouraging the individual to reflect on the whole period of their employment and giving them a broad invitation to comment on anything that has caused them concern;
- staff not being given enough choice about who the interview is with, so that they end up having to speak to someone who they do not trust and to whom they are not willing to be frank;
- responses given in exit interviews not being analysed to see if there are concerns that need to be explored further, or patterns that are emerging.
Exit interviews that are well prepared, properly carried out and closely scrutinised offer valuable evidence about the true state of an organisation’s culture – for better or worse. Engaging fully with the process and reflecting on evidence collected can steer your organisation to identify areas for improvement, and in turn help you to comply with the new duty to prevent sexual harassment.
Tip 7: Train your staff, and in particular your managers
It is obvious that a crucial part of preventing sexual harassment in the workplace is educating all staff about unacceptable conduct – both so that they understand not to engage it in, and feel confident in calling it out. Considering and meeting the differing training needs of different levels of staff in your organisation is in itself a reasonable – and simple – step to be taking towards preventing sexual harassment. There are lots of online platforms offering suitable content of this kind. Managers, however, need more bespoke training.
Managers will be a key linchpin of an organisation’s ability to demonstrate they are taking steps to prevent sexual harassment. Managers need to learn how to lead by example: how to set standards and how and when to challenge inappropriate behaviour by colleagues. They need to be taught how to be proactive in identifying and minimising risks of sexual harassment, both in day to day workplace interactions and in specific situations. They need to be enabled to deal confidently with any concerns about harassment that are raised with them – including by and about third parties. How should managers handle banter? Is sexual harassment still a concern when workers are working remotely? What should a manager do if a colleague raises a concern with them in confidence?
Tip 8: Third party harassment: know your risk areas and take proactive steps to minimise them
The Equality and Human Rights Commission has indicated that the new duty to prevent sexual harassment extends to third parties. Whilst not yet expressly stated in the legislation, the recently released Employment Rights Bill confirms that the Government intends to spell out that employers have an obligation to take all reasonable steps to prevent such harassment. Third parties can encompass a wide range of individuals, including customers, services users, members of public and suppliers, to name but a few.
So, how can you take steps to ensure this duty is being met and to engage proactively with the actions of those beyond your own workforce? An organisation should begin by considering where the vulnerabilities lie in this regard. Identifying where your employees come into contact with third parties is step one. This will of course vary depending on the organisation, but you should consider not only in-person contact but also any interaction that occurs over the phone or online. Then you should consider whether any potential aggravating risk factors exist, such as lone working, having an insecure / casual workforce or other power imbalances. Having reflected on what the risks might be, you should plan what steps you can take to mitigate these risks. For instance, you might communicate your organisation’s zero-tolerance of sexual harassment by displaying posters in key places where third parties will see them; using an automated message before a call is put through to a member of staff; or including relevant wording in contracts with suppliers. You should ensure that your employees are aware of how your organisation will respond to any concerns of third party harassment both in terms of supporting the victim and in dealing with the perpetrator. You should clearly communicate the steps that will be taken with third parties found to have harassed staff, up to and including ending the organisation’s relationship with them.
Thinking about how your staff interact with third parties and the ways you can minimise any risk should not be overlooked, and documenting this process provides crucial evidence of how your organisation is responding to the new duty both carefully and constructively.
Tip 9: Identify problems and patterns in your organisation
We have considered the various way in which organisations can gain a true picture of the risks within their business. These have included ensuring that staff are clear through your policies and procedures how to raise concerns, conducting staff surveys so that individuals can come forward with the comfort of anonymity, carrying out exit interviews to get unfiltered feedback and undertaking risk assessments to identify areas of vulnerability. All of these channels may provide a wealth of information and data. But, an organisation will only meet the duty to prevent sexual harassment if it takes action on this information.
So, how should the data be reviewed? Should it be reviewed within HR or under line management? Should it be a standing agenda item for the Senior Leadership Team or Board? This may depend on the type of data that is being considered. It may be easier for HR to identify patterns revealed through individual concerns, whereas information from a staff survey may benefit from an overview being taken at a senior level.
Who should review the data? Should it be a single individual or a panel? Should there be a gender balance in who reviews the data? At what level of seniority should the data be reviewed? If information is considered and a response to it is given at a senior level, this will show from the top down that the organisation is taking its duty seriously.
When should the data be reviewed? Remember that the duty is forward looking and preventative. It will therefore be important that data from all sources is regularly reviewed (at least annually) to identify patterns and risks so that organisations can put in place measures to protect their staff from any future risks of harassment.
Tip 10 – Keep your arrangements and steps under regular review
The 26 October is not the finishing line, it must be viewed as the beginning.
Whether an organisation has taken preventative “reasonable steps” will be judged at the point at which a complaint of sexual harassment is made. It will therefore be essential that organisations continue to build on the preparation they have undertaken to get ready for the duty. In addition, the Employment Rights Bill, while not yet in force, proposes to expand on individual rights against sexual harassment including from third parties and introduces the reporting of sexual harassment as a new category of whistleblowing. It is clear that there will be an increasing focus in the years to come on whether organisations are doing enough to protect their staff.
You must, therefore, ensure that policies are kept under regular review and staff training is kept up to date, review and renew risk assessments to ensure they accurately address current and future vulnerabilities, continue to conduct staff surveys and exit interviews making sure that the questions are relevant and useful, and carefully analyse the data from all of these sources to shape the measures that you will put in place. As a first step, organisations should diarise a 6-month review to assess progress on all of these aspects and then a review on the anniversary of the duty coming in to force. At least annual reviews of all aspects in the likely changing legal and societal landscape will enable you to provide a safe and secure environment for your staff and to clearly demonstrate legal compliance with your duties.
We offer bespoke training that is aimed specifically at managers. It will guide them through the new duty, what it means for their role and the practical steps they can take to reduce the risk of sexual harassment in your business. Find out more here.