Preventing sexual harassment in the workplace – how to prepare for the party season

I appreciate that the festive season is still a way off but, for some employers, the time is nigh for planning the staff Christmas party—booking the venue, sorting the entertainment, and mentally bracing for Chris Rae on repeat. For most, the next couple of months will be a time of merriment—of taking stock, being thankful for what you have, and planning for the year ahead. Unfortunately, for employment lawyers, we are likely to see an uplift in our workload as December approaches and Christmas party merriment crosses the line into misconduct. I don’t mean to be a killjoy, but it happens every year. Without fail.

It seems somewhat apt, then, that the mandatory duty on employers to take reasonable steps to prevent sexual harassment in the workplace has come into force (the Preventative Duty)—just in time for this year’s Christmas parties. Employers have long been subject to a legal duty to provide a safe and supportive working environment for all staff but this new duty takes things further.  

Sexual harassment means unwanted conduct of a sexual nature that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading or offensive environment. This could be anything from innuendo or jokes to more extreme acts of a sexual nature, such as groping or making sexual advances.

The Preventative Duty requires employers to take positive steps to prevent this type of misconduct from occurring. In practice, this means employers need to anticipate scenarios in which staff may be subjected to sexual harassment in the workplace, and take action to prevent it. What is understood by the “workplace” is broad, and includes office parties, away days, work drinks events, and similar.

Whether an employer has taken “reasonable” steps to guard against sexual harassment occurring in the workplace is an objective test which will vary from company to company. It will depend upon the size and resources of the employer, the nature of the working environment, the industry in which the employer operates, the risks present in the workplace, and any relevant regulatory standards (amongst other factors). The Equality and Human Rights Commission has published some guidance on this, but with the Christmas party season on the horizon, what can employers practically do to comply with the new duty?

A good start would be to:

1. Carry out appropriate risk assessments, including by reference to any previous complaints of sexual harassment or feedback provided by staff (e.g. in grievances, exit interviews or staff surveys).

In the run-up to “higher risk” periods such as Christmas and the New Year, identify the activities and circumstances which pose a greater risk to staff of sexual harassment occurring (such as unlimited alcohol at informal/social events, late-night gatherings, or events held at hard-to-get-to locations), and the practical things which can be done to minimise those risks.

For example, consider alternatives to a traditional “Christmas party” such as a team lunch or activity-based daytime social (such as go-karting, a sporting event, or a tour). What about a no alcohol policy or setting limits on the amount of alcohol served per person? What about an earlier end time, with “carriages at 10:00pm” for example, or events held at locations where there are good bus/taxi/train links so that people can get home safely, and more easily?

2. Do your homework. Allegations of workplace harassment can be deeply distressing for all concerned, but damning for employers who are perceived to have done little to train, educate and/or protect their staff.

Ensure anti-bullying and harassment, equality and diversity, whistleblowing, and disciplinary and grievance policies and procedures are up to date, easily accessible and refer, where appropriate, to the Preventative Duty. Explain what the duty is and what is expected of staff in terms of compliance with it, as well as the reporting of any wrongdoing.

If an employer does not already have one in place, they ought to implement a clear and detailed sexual harassment policy. It is important that this extends beyond the physical workplace to staff working remotely and to work-related social activities. It should also address the possibility of third-party harassment (harassment by clients or customers, for example) and explain what individuals should do if they witness or experience such harassment. Further, any such policy should define sexual harassment and the new duty, explain how to report an incident, outline what action will be taken, and explain how the decision as to any appropriate sanction will be made.

3. Think about holding refresher training (prior to a company event or social) to remind people of the standards of conduct and behaviour expected of them. Make clear that these standards extend to informal/social gatherings, such as the Christmas party.

Training should be aimed at all levels of the professional hierarchy but may need to be more tailored for those with managerial responsibilities or at senior executive level, given the potential for allegations of the abuse/misuse of power.

Training should also be provided to managers on how to deal with reports of sexual harassment to ensure matters are taken seriously, addressed as quickly as possible, and that employees who report matters are supported. “Bystander intervention” training may also be appropriate, to encourage staff to recognise sexual harassment when they see it and speak up.

4. Make it easy to come forward. Reporting an incident can be daunting, whether you are a victim of sexual harassment or a witness. Employers should work to make reporting incidents less intimidating.

Employees should be able to report sexual harassment in a number of ways, for example through a specific phone line, online form, independent third party or via an anti-sexual harassment “pioneer” internally.

In addition, providing a mechanism for anonymous reporting may be an effective way of encouraging employees to come forward, provided they understand that anonymity may impact upon an employer’s ability to deal with the issue as effectively as possible.

The politics of it all

The Labour Government has made it clear that workers’ rights are firmly in its sights. With the publication of the Employment Rights Bill, intended to improve the position of millions of workers with the introduction of potentially far-reaching legislative changes, we are expecting to see a real shift in the cultural attitude towards staff.

Whilst the Preventative Duty was enacted under the Conservatives, the Labour Government intends to make its mark by taking the duty further as part of its reforms. For example, changes proposed under the recently published Employment Rights Bill include strengthening the Preventative Duty so that employers are required to take “all reasonable steps” to prevent sexual harassment of their employees in the course of their employment, not just “reasonable steps”. 

Another significant reform under the Employment Rights Bill is the introduction of employer liability for third-party harassment (alluded to above). This would mean that, depending upon the facts, employers could be vicariously liable: (1) in the event a third party such as a customer or client subjects an employee to harassment; and (2) the employer failed to take all reasonable steps to prevent that harassment from occurring.

The Government also plans to amend whistleblowing legislation to include sexual harassment as an explicit “relevant failure”, in relation to disclosures qualifying for protection.

Whichever side of the party line you fall, it is clear that sexual harassment continues to be a major problem and that changes are being enacted by the current Government to increase employers’ accountability. Employers would be well advised to turn their minds to this issue, particularly as the party season approaches. After all, eradicating sexual harassment in the workplace and protecting staff can only be a good thing.

Further information

if you have any questions regarding this blog, please contact Francesca Lopez in our Employment team.

About the author

Francesca Lopez is a skilled employment lawyer, with extensive experience acting on both sides of the negotiating table. From recruitment to termination, she handles the full spectrum of employment law matters, advising clients in a variety of sectors including but not limited to legal, financial and other professional services, technology, education, medicine, aviation and defence. She has a particular interest in acting for regulated clients.