Preventing Sexual Harassment in the Workplace: A Cultural Shift or Business as Usual?

Sexual harassment in the workplace is a pervasive issue with serious consequences for both employees and employers. According to a 2023 Trade Union Congress poll, 60% of women reported experiencing sexual harassment, bullying, or verbal abuse at work.

Starting from the 26 October 2024, UK employers are required to take “reasonable steps” to prevent sexual harassment within their workforce. This new law imposes a positive duty on employers to take proactive rather than reactive steps to prevent this type of conduct. UK employers are already familiar with similar legal requirements to prevent bribery, tax evasion and soon, fraud. Therefore it is not surprising to find the Equality and Human Rights Commission (EHRC) guidance to employers on what constitutes “reasonable steps” closely aligns with the UK government’s compliance guidelines for preventing bribery and tax evasion which require either “adequate controls” or “reasonable controls.”

The good news is employers don’t need to start from scratch when updating their compliance controls in this area, as they likely already have programs in place to address harassment and discrimination. Instead, they can adapt the six principles for preventing bribery and tax evasion, embedded within existing controls to align with the guidance from the EHRC.  

With growing social awareness and greater legal requirements in this area employers must stay vigilant and proactive in their efforts to prevent harassment. Employers who adopt a holistic approach to preventing sexual harassment, investigate fairly, and can demonstrate their controls are effective will be in the strongest position when defending any claim as to the “reasonable steps” that have taken to prevent this conduct.

Increasing Compliance and Global Trends

This type of legislation is part of a global trend, with countries like the United States, Canada, and Australia adopting similar laws to protect employees from harassment and discrimination. In our article (here) for the International Employment Lawyer we consider the global transformation of workplace sexual harassment prevention laws and the cross-border challenges employers face.

In the United States, the Equal Employment Opportunity Commission (EEOC) enforces laws prohibiting workplace harassment and discrimination. The EEOC provides guidelines and resources to help employers create harassment-free workplaces. The EEOC has reported significant settlements and corrective actions in response to workplace harassment complaints. In 2023, the EEOC received more than 7,700 charges of sexual harassment in the nation’s workplaces, the highest number in 12 years and up nearly 25% from the previous year.  Several EU countries have implemented comprehensive anti-harassment laws. For example, Sweden requires employers to have policies and procedures in place to prevent harassment and provide training to employees. France has also strengthened its legal framework, requiring companies to implement measures to prevent and address harassment. Australia has also implemented robust anti-harassment laws, with the Fair Work Commission and the Australian Human Rights Commission providing guidance and support to employers.

What Should Employers Do Next?

As the principles and EHRC guidance make clear, employers should adopt a risk-based approach to managing this risk and procedures should be proportionate to the risks faced by an organisation. When assessing what reasonable steps look like, the court will consider the effectiveness and quality of the controls in place and whether the conduct continues and is reported after the measures are implemented.  The time, effort, expense and other practicalities required to implement a set of measures will also be taken into account when determining if such a control was reasonable. [1]

Based on Seyfarth Shaw’s Lessons Learned in Australia,  a country which has been living with similar laws for nearly two years and taking into account the EHRC guidance, as well as related UK case law on what amounts to “reasonable steps ” employers should consider implementing the following key steps.  

1. Conducting a Thorough Risk Assessment

Employers should start by conducting comprehensive risk assessments to identify potential harassment risks. This involves evaluating working conditions, such as isolated work areas, night shifts, and interactions with third parties, as well as high-risk work environment scenarios (such as those involving alcohol or power imbalances). Some tips for conducting a thorough risk assessment include: make sure you have leadership buy-in and support; involve the right people to ensure an informed and complete overview of the risks; take into account specific working environments and risks; avoid preconceptions about the effectiveness of controls; identify and describe the risks clearly; evaluate risks realistically and ensure everything is well documented.

Gathering feedback from employees through surveys and interviews is also essential. For example, in Allay (UK) Ltd v Gehlen [2021], the Employment Appeal Tribunal (EAT) found that the employer failed to take reasonable steps to prevent racial harassment due to inadequate risk assessments. Regularly updating these assessments and taking proactive steps to mitigate identified risks can help prevent harassment and demonstrate a commitment to employee welfare.

Employers do not need to reinvent the wheel here, and can leverage existing health and safety or bribery risk assessment procedures and systems.

2. Developing and Updating Policies

Clear, comprehensive, and regularly updated anti-harassment policies are essential. These policies should define unacceptable behavior, outline reporting procedures, and specify consequences for breaches. In Baldeh v Churches Housing Association of Dudley and District Ltd [2019], the lack of clear policies contributed to a hostile environment, leading to a finding of discrimination and harassment. Employers should incorporate feedback from employees and legal updates to ensure policies remain effective. For instance, policies should be reviewed annually or whenever there are significant changes in the law or workplace dynamics. However, the EHRC has made it clear that simply updating policies will  not be sufficient to meet the new positive duty, and employers should take a range of steps to show compliance.

3. Engaging and Communicating with Staff

Regular communication about anti-harassment policies and procedures is essential. Employers should use meetings, emails, and training sessions to ensure all employees are aware of their rights and the reporting process. An open-door policy can encourage employees to voice concerns without fear of retaliation. Effective communication helps create a culture of respect and accountability. For example, companies can hold quarterly town hall meetings to discuss workplace culture and remind employees of the anti-harassment policies [2].

4. Establishing Reporting Mechanisms and Providing Regular Training

Confidential and accessible reporting mechanisms are vital. Employers should provide multiple avenues for reporting harassment, such as anonymous hotlines, designated HR contacts, or online reporting systems. Employers should not set a time limit within which complaints must be made. Ensuring confidentiality and a clear reporting process can encourage employees to come forward. Employers who fail to establish such mechanisms often face legal challenges. For instance, in Allay (UK) Ltd v Gehlen [2021], the lack of effective reporting mechanisms contributed to the employer’s liability.

Training should be regular, comprehensive, and tailored to specific roles and risks. This includes ongoing sessions and refresher courses to ensure all employees understand their rights and responsibilities. Employers who provide inadequate or one-time training often face legal challenges. Regular training helps reinforce the importance of a harassment-free workplace. For example, training sessions can include interactive workshops, role-playing scenarios, and e-learning modules to engage employees and enhance their understanding [3].

5. Responding Promptly to Complaints

Employers must act quickly and effectively when complaints arise. This includes conducting thorough investigations, maintaining confidentiality, and protecting complainants from retaliation. Prompt and fair responses to complaints are crucial for maintaining trust and compliance. Employers who ignore or delay responses often face legal repercussions. For instance, in Baldeh v Churches Housing Association of Dudley and District Ltd [2019], the employer’s failure to address complaints promptly contributed to the finding of harassment.

6. Managing Third-Party Risks

Employers should assess and mitigate risks associated with third-party interactions, such as customers, clients, or suppliers. Providing mechanisms for reporting harassment by third parties and training employees on handling such situations are essential steps. Failure to address third-party risks can lead to liability for employers. For example, companies can implement policies that require third-party vendors to adhere to the same anti-harassment standards as their employees [4]. Employers should also build in third-party risks to their risk assessments, so they are thinking beyond the traditional employer/employee harassment scenarios to all interactions that can occur in a work setting.

7. Monitoring and Evaluating

Regular monitoring and evaluation of anti-harassment measures are necessary to ensure their effectiveness. Employers should conduct staff surveys, review trends in complaints, and make necessary adjustments based on feedback. Continuous improvement helps maintain a safe and compliant workplace. For instance, companies can use anonymous employee feedback tools to gather insights on the effectiveness of their anti-harassment policies and training programs [5]. We have seen the most pro-active employers using technology to gather data, spot trends and pinpoint high risk areas.

Monitoring and review is not a one-off annual task, and employers should regularly review and update their prevention strategies to ensure new risks and incidents are being identified and addressed. We strongly recommend taking a collaborative approach and involve stakeholders from various teams (legal, HR, safety, operations, leadership, etc.) when developing and evaluating your prevention strategies.

8. Investigating Complaints

Employers should align their workplace investigations with the new proactive framework to ensure thorough and fair handling of complaints. This means not only responding effectively to complaints but also recording the steps they have taken to prevent harassment. Investigations are a crucial step in this framework protecting both employees and employers. A prompt and fair investigation allows employers to quickly identify unacceptable conduct, while demonstrating to employees how seriously they took the matter. It also reassures staff that they will be heard when they speak up, reinforcing a positive workplace culture.

Handling these types of sensitive allegations requires careful planning. A poorly designed or executed investigation can cause more harm to the complainant and significantly weaken an employer’s ability to remove employees, as well as defend itself before any tribunal. These matters can also lead to significant reputational harm, making it crucial for investigators to be well-trained and adept at gathering the best evidence through fair and effective interviews and investigations. Given the potential for accusations of bias or conflicts of interest, employers might consider outsourcing these investigations.

These investigations should be conducted in line with the ACAS guidance on general workplace investigations, however there are some specific issues to consider when investigating sexual harassment, including:

- whether privilege should apply or can apply.

- the requirement to take “reasonable steps” implies that investigations should be swift, thorough, and accompanied by appropriate remedial actions where harassment is found.

- a clear scope of investigation will help keep minds focussed on the matter in issue and helps to avoid mission creep.

- ensure confidentiality is protected and communicated to all parties involved and consider implementing interim protections, such as separating employees or modifying schedules, to prevent further harm while investigations are pending.

- the need to document each stage of the investigation carefully.

- ensure investigators are adequately trained to conduct an investigation of this kind which may also have hallmarks of criminal conduct.

- ensure all involved have access to emotional support services.

- ensure all parties including witnesses expectations are manged while keeping them updated on time lines.

- when appointing an investigator, consider the sensitivity of the subject matter and whether the interviewee will feel more comfortable with a person of the same sex.

- investigations of this nature differ substantially from those which are heavily based on the review of internal communications. Investigators need to be confident they know how to adduce the best evidence from individuals to assess the credibility of their accounts.

- ensure internal and external communications are prepared to manage internal concerns and respond to incoming queries.

Once the investigation is over time should be taken to consider what can be learned from the findings and whether culture and procedures can be improved. Secure support from senior sponsors in the business as this will make the journey for change much smoother.

Conclusion

By following these steps, employers can create a safer and more respectful workplace, ensure compliance with legal standards and foster a positive organizational culture. Employers who take these proactive steps not only comply with legal requirements but also demonstrate a commitment to the well-being of their employees. This can lead to a more positive work environment, increased employee satisfaction, and reduced staff turnover. As the global trend towards stricter anti-harassment laws continues, employers must remain vigilant and proactive in their efforts to prevent harassment and create a safe, respectful workplace for all.

Why Seyfarth IEL

Our award-winning UK and international employment team has extensive experience of workplace investigations. By leveraging the expertise of our cross-discipline team in America, Europe, Asia, and Australia, we ensure you receive the highest quality advice wherever you need it in the world.

If you have any questions arising from this article, please contact your Seyfarth attorney or the authors, Matthew Banham and Georgina Hatch, who are part of our investigation team in London.

[1] Allay (UK) Limited v Gehlen [2021] UKEAT 0031200402 (Unreported, 4 February 2021)
[2] Equality and Human Rights Commission (EHRC) - Employer’s 8-step guide to preventing sexual harassment at work 2: ACAS - Sexual Harassment: EEOC - Promising Practices for Preventing Harassment
[3] Ibid
[4]  Equality and Human Rights Commission (EHRC) - Employer’s 8-step guide to preventing sexual harassment at work 2: UN Women - RESPECT Framework Monitoring and Evaluation (M&E) Guidance 3: National Academies Press - Evaluation in Action: Examples and Resources
[5] Ibid