Duty of care

Employment law and health and safety expert Nick Babington explains the Government’s new policy on sexual harassment in the workplace

In July, the Government gave its response to a consultation that was out on sexual harassment in the workplace. This outlines a new duty on organisations to prevent sexual harassment in the workplace.

Currently, as a clinic or other aesthetic business owner, you have an obligation to protect staff from discrimination and harassment in the workplace. This is set out in the Equality Act 2010. However, this upcoming change will mean you have to make a concerted effort to prevent sexual harassment. Essentially, the issue should become a high priority.

SEXUAL HARASSMENT PREVENTION DUTY

So, what does this mean in practice? To begin, you must take “all reasonable steps” to ensure that sexual harassment is prevented in the workplace. The definition of what taking reasonable steps should look like is not yet clear.

Under the new rules, employees will be able to bring a claim against you if they feel you aren’t doing enough to prevent sexual harassment. The rules for this are also unclear. Hopefully, the Government will provide further clarity on this before it is enforced. However, we can draw some conclusions based on existing employment law. For example, the “reasonable steps” defence already exists in law. It allows organisations to avoid liability when it comes to harassment and discrimination. This is because organisations are “vicariously liable” for the actions of their employees (and agents). Even if you are unaware of what an employee is doing, you are still liable for any discrimination that occurs. That is, unless you can show that you took all reasonable steps to prevent discrimination from occurring.

Liability applies to anything that occurs “in the course of employment”. This can extend to events beyond the actual working day, or outside of the workplace. This includes office parties, conferences, and other work gatherings. It is expected that this new duty will go beyond this, a possible “reformulation” of the law. However, more clarity is needed. The compensation award to employees who make a successful employment tribunal claim is also yet to be made clear. The Equality and Human Rights Commission is expected to be given more support to enforce this new duty. They’ll be supported to take strategic action, and “impose legally binding agreements” on offending organisations. It will look closely at extending the time limit for bringing Equality Act-based cases to a tribunal from three to six months. The Commission will also create a statutory code of practice to help organisations with compliance.

HR CONSIDERATIONS

With so much yet to be cleared up, what should you be doing in preparation? You can prepare to update existing policies on discrimination and harassment. A review of your policies should highlight where you need to improve. Taking active steps to reduce sexual harassment in the workplace now will help you avoid costly tribunal claims in the future. This may seem like a daunting task, but it’s an essential one. It’s possible that entirely new policies may be necessary. If you don’t have a sexual harassment policy already, now would be a good time to start planning, ready for the upcoming update.

In the meantime, you should also clearly set out the organisation’s rules on acceptable workplace behaviour to explain your zero-tolerance stance on sexual harassment. Training on sexual harassment should also be undertaken within the organisation. Train staff at the start of employment then periodically repeat the training. This will reinforce the rules around workplace conduct. The training can also cover how to spot incidents of sexual harassment and how to report any concerns. A crucial way to ensure employees feel supported and confident with bringing these issues up at work is to take each concern seriously. No allegation should be ignored or dismissed based on a manager’s own perception of the matter. Every allegation should be fully investigated, and disciplinary action taken where necessary.

To reduce uncertainty around raising concerns, organisations can allocate a “named person”. This will be the individual to whom allegations should be made. Training can be provided to the allocated person to ensure they’re approaching these allegations sensitively. The individual should be able to communicate with staff in an appropriate manner. Inform them of the process for reporting these allegations for investigation to ensure there is no delay.

EXPERT SUPPORT

Ensuring your employees feel safe within the workplace is vital. Plus, allegations of sexual harassment can be damaging and disruptive to the business and can lead to costly tribunal claims. So, with the introduction of further measures from the Government, it’s never been more important to take a firm stance against sexual harassment.

NICK BABINGTON

Nick Babington is director of Croner Group. He delivers client-based solutions to businesses of all sizes and advises on employment law, health and safety legislation and good commercial practice. Contact him: 07896 036 993/Nick.Babington@croner.co.uk