Tailored training ‘central’ to compliance with UK’s new sexual harassment duty, warns lawyer

Employers are unprepared for the new duty to prevent sexual harassment which comes into force on 26 October. That is People Management’s headline reporting on research showing that just 5% of the 2,000 employers surveyed businesses said they are well prepared it. The new proactive duty to take reasonable steps to prevent sexual harassment will require a marked shift in culture for many businesses and a need for a new widespread tailored training programme. We’ll speak to our Head of Client Training about what that should look like.

This is data from a survey conducted by WorkNest. It shows three in five businesses still needed to do some work to comply with the new legislation, while 10% said they still had ‘a lot’ to do. A further 26% of employers said they knew what to do but were yet to implement it, and less than 1% agreed that they were fully prepared and had no further work to do before the legislation came into force.

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.

New guidance is expected soon from the Equality and Human Rights Commission following a consultation they conducted over the summer and there can be no doubt it will stress the importance of training for all staff so they understand both what sexual harassment is, in its various forms, and what to do if an incident arises. Training is already a feature of the Commission’s existing guidance, and we expect that section will be expanded in the new version.

Notwithstanding the results of that survey, most large employers, and most of our clients, are aware of the duty and have been preparing for it. Trish Embley is the Employment Group’s Head of Client Training and she has been working with a number of clients to get the necessary training programmes in place and earlier she joined me by video-link to discuss it. First question – what does the training cover? 

Trish Embley: “Well Joe, what we've really focused in on is what the Equality and Human Rights Commission in their existing guidance have said. So what seems to be key is that you explain to all your employees exactly what is meant by sexual harassment because there are three different forms. There's conduct of a sexual nature, there's conduct related to sex, and then there's a sort of, what we call, the kickback if you've submitted or rejected that sort of behaviour and then you suffer unwanted conduct. So it's quite a complex definition and that needs explaining. What else is key? Just to explain to people what their behaviour should be, what behaviours would cross the line, what they should do if they experience it themselves, what support is available to them or, indeed, if they witness it. So that's one set of training for all employees that is really important.”

Joe Glavina: “What’s clear from the Commission’s consultation exercise, Trish, is that any training on sexual harassment prevention needs to be tailored to the needs of the particular business. In fact, the more you can tailor it, the better.”

Trish Embley: “Oh, absolutely, because what this duty involves is all organisations doing a risk assessment, and they'll do that by doing surveys through employee engagement to find out what the risks are in different parts of the business. Obviously you could work in an organisation and your risk of sexual harassment may be relatively low in one part of the business and, in another part of the business, it could be quite high or of a different nature, or the risks could be of a different nature. So it's only really when you've done that risk assessment that you can then decide what sort of training is appropriate for different parts of the business. The other thing to bear in mind is I've mentioned training for employees, and their behaviours, and their rights, but what is also needed is a different sort of training for line managers because they've got to be the people who influence the culture and intervene and don't just wait for complaints. In addition to that, there's training that needs to be done for anyone investigating these complaints because what is highlighted in the EHRC guidance is that, unlike other sort of grievances that we might investigate, sexual harassment complaints can be very traumatic and there are a lot of sensitivities, and we've seen cases of some very inappropriate questioning about maybe the complainant's relationship with the perpetrator or other individuals. So there's a lot of training that needs to be done to make sure that those that investigate complaints do so properly and don't worsen the trauma. The EHRC also flagged the fact that there may well be those in the organisation, such as HR, or you might have sexual harassment champions, who could do with training on how they can best support and signpost things like EAP, and forms of support, to an individual who would come to them raising an issue of sexual harassment.”

Joe Glavina: “You mention the Gehlan case and we’ve also had another case recently involving a casino where the employer’s ‘all reasonable steps’ defence failed because the training provided to managers was generic, not sufficiently tailored to the business.”

Trish Embley: “That's absolutely right, so not tailored, one size fits all, and as the EAT said in that case, brief and superficial training will not satisfy the existing statutory defence to take all reasonable steps to prevent harassment. So, I think businesses have to think about that. If there's this tendency, or pressure, to just tick a box, to run something out as cheaply as possible, that won't do. We provide a variety of training, face to face, online, classrooms and workshops where people can ask questions. This is quite complicated stuff. The objective has to be not just to tick a box, but to change people's behaviours. So even with, for example, our e-learning we suggest that that is done section by section and that individuals have a chance after each section to ask a few questions, to challenge, to push back, because that's really the only way people will learn, understand and, ultimately, change their, in some cases, attitudes and their behaviours.”

Joe Glavina: “Of course, whilst training is very important it’s just part of a broader strategy that firms need to think about. Is that right?”

Trish Embley: “That's right, and I do think there could be a few misconceptions here that everyone just goes straight to training. That's it, training. But of course, what the duty does involve, if you look at the Equality and Human Rights Commission’s very helpful seven step guide on the duty to prevent sexual harassment it starts with an audit, actually finding out what is going on in your organisation and in the different parts of your organisation through, as I say, anonymous surveys, one to one meetings, exit interviews, and then and only then coming up with your action plan and taking a risk assessment approach, borrowing a lot from health and safety law about where are our hotspots, where are our risks, what actions are we going to take in different parts of the business to mitigate and reduce those risks. The other thing to think about as well is, how are you going to do this as regards third parties because the Equality and Human Rights Commission have said part of that duty is to protect your own staff from harassment that might come from the staff of third parties.”

Joe Glavina: “If I can come back to what you said about training on conducting investigations. I’m aware of a trend we’ve seen towards using external lawyers to conduct investigations especially in complex cases or when senior management is accused and there are reputational risks. We’ve seen that particularly in the FS sector. Is that a trend that you've noticed on the training side?”

Trish Embley: “Yes it is. I mean, we've seen the media, there are an awful lot of cases out there now coming out where it has been senior leaders in an organisation who, because of, I guess, their power, have exploited that and committed acts of sexual harassment. So being able to refer this out to external lawyers means that there's no question mark over independence or credibility of the investigation, and it shows that commitment to independence to say we were prepared to outsource this to experienced lawyers who know the law, know what they're looking for, and therefore there can be no suggestion of a cover up.”

Joe Glavina: “A key point that comes through in the Commission’s guidance is the importance of getting the senior leadership in the business onboard with this.”

Trish Embley: “Yes, again, I would just encourage everybody not to look at this just as we've just got to train our employees. What the Equality and Human Rights Commission seem to be saying is the duty to prevent must start at the top. Ideally the CEO, but certainly the board, should be leading the charge through comms, through working with focus groups. I've talked about the similarities with health and safety, that this as an issue is regarded as seriously as health and safety in organisations and that's where we are lucky in that our colleagues in our Australian offices are used to this and since 1st January 2023 they've been advising on this risk assessment approach to sexual harassment. So we're very keen to listen to them, we’re running webinars with them, and we also have our D&I consultancy colleagues who know about the practicalities of these sorts of D&I audits and risk assessments and so, between all of us, we're in a good place to advise.”

As Trish says, if you would like help preparing for the new duty then please do get in touch - Trish’s contact details are there on the screen for you. Alternatively, please contact your usual Pinsent Masons adviser.