An Employer’s Duty to Prevent Sexual Harassment

1. Have a Clear Policy (or rather have 3). Not just a written staff policy (although that is obviously a no brainer) but also a policy that you require third parties to engage with. We have all seen the “We will not tolerate harassment of….” notices on public transport and other places, well same goes for other employers. Review your standard terms for engaging with clients and customers and pop a note on your website legal notices. Oh, and when someone raises a concern or you spot an issue make it your policy to deal with it promptly, properly, and professionally. Internal policy, eternal policy, follow your policy.

2. Risk Assess. It’s not hard to do and yet so many employers still haven’t. If I’m defending (or for that matter suing) you it will be one of the first documents that I ask for. The Equality and Human Rights Commission guidance is clear that “employers are unlikely to be able to comply with the preventative duty if they do not carry out a risk assessment”.  So, get on it if you haven’t done one, and review it regularly (annually) if you have.

3. Train Staff. Make sure workers, including managers and senior staff, understand what sexual harassment looks like, what they should do if they experience or witness it and how to manage any complaints. Yes, you can do this as part of your equality, diversity and inclusion training but make sure it is a clear, separate component. Harassment on the grounds of sex (and other protected characteristics), and sexual harassment are two quite different things (and claims) and should be treated as such.

4. Zero Tolerance Means Zero Tolerance. No matter how successful or valuable the member of staff / third party responsible for the harassment your obligation is clear. So, take it seriously, do not brush it under the carpet, ensure an appropriate sanction and where that sanction is not dismissal then ensure appropriate training. Most people get (or should) that sexual harassment is not something that is tolerated any more. The world has moved on and they need to too. Be firm, be fair and be sure to keep appropriate records of action taken.

5. Reporting. Make sure staff know that they can, and importantly how, to make a report of concern. If you do the above then staff should feel more confident that any report will be taken seriously, investigated and if appropriately dealt with. If staff report with a “I just want, you to know but I don’t want you to do anything” then you’ll need to find a way to ensure that you do in fact do something to comply with your obligations but in a way that doesn’t violate trust. Not an easy balance but something you must achieve if you are to avoid the inevitable “you knew but you did nothing” when it happens again.

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