On 26 October, a new proactive duty on employers to take ‘reasonable steps’ to prevent sexual harassment of their employees comes into force. It is anticipatory rather than reactive, meaning employers will need assess carefully the risk of sexual harassment and actively take steps to prevent it from happening. For most that will involve an assessment of the culture within the business and a plan to improve it. We’ll speak to a D&I specialist about implanting cultural change.
A reminder. Under current law employers are liable for harassment committed by their workers in the course of employment, but they will have a defence if the employer can show that they took ‘all reasonable steps’ prevent it. The new law set out in the Worker Protection (Amendment of Equality Act 2010) Act 2023 goes further, creating a new positive legal obligation for employers to take reasonable steps to stop sexual harassment from happening. The aim is to shift employers’ focus towards taking proactive measures to identify risks and prevent sexual harassment from happening in the first place. If an employer breaches the new duty, the Equality and Human Rights Commission will have the power to take enforcement action against the employer and, if a claim is brought, employment tribunals will have the power to increase compensation for sexual harassment by up to 25%. There is also the risk of reputational damage as a result of being shown to have a culture where harassment exists, and/or is not addressed.
As you’d expect, the CIPD has been issuing guidance for HR in this area in recent months and their latest publication emphasises the importance of involving senior leadership. They say: “Senior leaders have a defining influence on the working culture and set the tone for expectations around behaviour and workplace civility. They need to embed and live the values and behaviour that underpin dignity, respect, and inclusion.” We agree and it echoes what we have been saying to our clients.
As the latest guidance from the Equality and Human Rights Commission makes very clear, what is required is a risk assessment approach. Given that the new duty is anticipatory rather than reactive, it means employers will need to assess carefully the risk of sexual harassment happening in their business and actively take steps to prevent it from happening in the future. For large businesses, the risks will vary across the different parts of the business meaning some may be more at risk than others.
So, let’s consider that. Kieron O’Reilly is a D&I specialist at Brook Graham, Pinsent Masons’ D&I consultancy, and earlier he joined me by video-link to discuss it. So what’s his key advice to HR?
Kieron O’Reilly: “The key advice, I would say, is understand your risk hotspots and that's because any organization will be made up of a range of different departments, specialisms and so on. The actual circumstances of harassment, in this case sexual harassment, the same for any other form of harassment actually, will differ depending on where you are in the organization. So if you are customer facing or if you, for example, are a sales team who will be required to go on to third party client sites to work on sales, or deals, or you could be in a warehouse. So there are a variety of environments that people work in. Our message is understand those and put the proactive measures in place that is relevant to each of those areas. This way you identify the risk hotspot and you respond to it.”
Joe Glavina: “For large employers there will be lots of senior managers heading up different parts of the business who need to understand the new duty and make it work in their business area. How are we helping HR teams to achieve that?”
Kieron O’Reilly: “Typically, it'll be HR will get in touch with us first, generally, because they are the custodians of the policies. So when we begin our conversations the first step is to make sure that the message goes upwards because the board and the senior leaders need to be able to understand exactly what these requirements are and how that plays out. So the first point we often end up with is talking to the executive, or the senior leadership team, about the approach we're going to take to put in these preventative and proactive measures. From there, it's simply a situation of just being aware of the different parts of the organization. So HR will work with us to have a look at what the different departments are, where those areas are, and what the types and job families are operating in those areas. The purpose of this really is so that we can start to advise them on what the risk hotspots are, and therefore we can come up with how we enact their policies local to those areas. So for example, if you're working off site and you're doing client sales and you may be in a third-party situation, there are different risks that may present themselves in that situation compared to, as I mentioned earlier, maybe working in a warehouse. Now, understanding those differences is absolutely key to putting in measures so we can establish them for each of the people within those areas.”
Joe Glavina: “The recent guidance published by the Equality and Human Rights Commission emphasises the importance of businesses having a speak up culture. What does that mean in the context of the work you are doing around cultural change?”
Kieron O’Reilly: “I think we need to recognize that there's a difference between being told there is a speak up culture and actually experiencing one. In the work we do, we often will find that where great policies are in place people don't always feel that safe to speak up and for a range of reasons. What we really want to get to is by putting in place a policy and actually helping people to understand how it works and preparing them for it in case they do need to call upon it. It drops into two categories. Firstly, what do you do if you witness or, unfortunately, are faced with the situation of harassment but then secondly, from the management and the processes around it, creating a safe environment that means people feel that they can use the policy, and they can report it, and they can speak up without any fear of reprisal.”
Joe Glavina: “To make progress in this area the Commission’s guidance says firms first need to understand what their current culture is, and then move forward from there. What does that mean in practice?”
Kieron O’Reilly: “So this is, this is probably the biggest key to getting any of these things to have an impact. Understanding your culture will come from various different sources. So a lot of organizations will have employee feedback and so on. What we tend to do is have a look at what people perceive the culture to be, and experience the culture to be, at different levels. So that will be different from an executive leadership team to someone working in a field-based operation. Any organization is generally a collection of smaller sub-cultures. So understanding those cultures and how they operate is key to making sure that the messages, and the policies you want put in place, land effectively and that's where we come back to understanding what the risk hotspots are so that we know what those different areas are like, and also informing the company what their culture is actually like at those different levels.”
Joe Glavina: “We know that changing the culture within a business is not a quick process. How long is this piece of work going to take and is it long lasting?”
Kieron O’Reilly: “It is long lasting. The development of culture is, we could almost say, always ongoing in one way or another. The reality is that if we want to build something into place we need to make it normal, we need to habitualise these kind of behaviours, and to do that we need to address the ones that are not acceptable and habitualise normal behaviours around those. With organizations we work with that can be within six to nine months, and that's with full buy in from the board right through to all line managers. At other times it can take longer depending on the size of the organization. But we've seen turnaround happen within six months for an organization of over 5000 people with a huge range of job families. So the will and the drive to make things happen is the key to getting the change that's needed.”
Joe Glavina: “Last question, Kieron. Where does responsibility for making this cultural change lie within the business? Is it with HR, or is it with line managers?”
Kieron O’Reilly: “So, HR own and will be responsible for the policies. Our job is to help them to turn those into behavioural change, and also to ensure that the responsibility for achieving the policy doesn't just sit with HR, it actually sits with line managers. It sits with individuals themselves. So rather than it just being something HR has to take on wholeheartedly, our role is to build it into behaviours which is then the responsibility of those outside HR so they're not carrying the whole burden and so that the impact that's required comes from everyone's efforts.”
We mentioned the Equality and Human Rights Commission’s guidance on sexual harassment. The Commission is in the process of making changes to that guidance to reflect the new duty and following a consultation, which closed on 6 August, they will be publishing an updated version. As soon as that is published we will let you know.
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