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When new legislation was passed last autumn, requiring employers to take ‘reasonable steps’ to prevent sexual harassment in the workplace, it was not because sexual harassment had hitherto been allowed.
Harassment at work – in all its forms – has been prohibited since the 2010 Equality Act (and to a lesser degree in legislation before that).
Autumn’s expanded regulations, however, significantly up the ante, by creating a whole new duty on employers to not only act if a complaint is made, but to actually “anticipate” occasions when sexual harassment might potentially occur and take steps to “prevent it.”
And yet, despite being passed with the best of intentions, lawyers, analysts, and HR professionals alike have since been struggling with just how they interpret this new legislation – particularly the extent to which they can reasonably be asked to foretell if sexual harassment (and harassment more generally) could occur in a normal work setting – such as while having team drinks, attending corporate events, or even in the process of developing standard at-work relationships.
Not surprisingly, it was this sentiment that was one of the first areas debated at a recent HR Grapevine and Brightmine roundtable on the topic, co-chaired by Brightmine Content Manager (HR Strategy and Practice), Bar Huberman.
Bringing together HR professionals from a variety of sectors – including retail (a sector already dealing with high levels of customer-to-employee harassment and abuse) and education – many of the attendees confirmed that having to risk assess virtually every possible work scenario felt onerous in the extreme, with widespread confusion about implications for work social events, such as Christmas parties. Employers remain undecided on best-practice and unclear if they are doing enough.
Prepare for rises in complaints (and deal with them properly)
Most of the attendees agreed that risk assessments for some of the more obvious at-work scenarios was sensible – and that this would hold up to scrutiny. They also argued re-promoting existing policies around acceptable levels of behaviour should be part of this approach.
And while some were worried that this could potentially create a sudden spike in complaints of harassment, the resounding sentiment of the room was that any complaint should be taken seriously, further emphasising that employers cannot bury their head in the sand on this topic or brush complaints aside.
Establishing a clear process for complaint handling, and communicating this clearly and consistently with employees, remain vital steps for businesses to 'get ahead' of any potential influx in complaints.
Line manager training is essential
Talk of dealing with complaints appropriately meant the conversation moved very quickly to the importance of ensuring that line managers, many of whom are likely to be Generation X, regard harassment as a ‘proper’ concern.
While some sympathised with whether, for instance, an unasked-for compliment could be considered harassment, HR professionals reminded one another that if someone feels harassed, that’s reason enough to take matters seriously.
Some managers may not have moved with the times and kept up to date with changes in legislation, potentially dismissing harassment as normal at-work banter or part of being in an adult-to-adult environment.
With difficulties and frustrations in getting some managers or leaders to see harassment for what it is, employers must revisit fundamental training and education about this issue for managers across the board.
Harassment needs stamping out
Data suggests that 10% of employees have witnessed or experienced sexual harassment at work, but nearly half (49%) of these people do not report it.
Employers should be wary that steps to create clear complaint procedures and improve education around hassment may lead to rising numbers of cases. This is not necessarily evidence that harassment is becoming more rampant; but more so that employees feel more empowered to come forward.
Accordingly, having as many channels as possible – phone, email, social and more – is the key to getting more engagement.
Some leading employers, prompted by October's legislation, have pledged to report sexual harassment reporting as part of wider ESG reporting. Why some may feel this move is brave, given the potential impact on (employer) brand reputation, a move for greater transparency is needed to stamp out harassment.
Suppliers – a riskier proposition?
As well as requiring employers to directly anticipate instances of harassment, the new legislation also extends to placing expectations upon the suppliers and clients used by employers, too. HR professionals reported hesitancy around just how direct employers could (or should) be with suppliers.
Employers could consider mandating that all suppliers sign up to stamping out harassment as part of their procurement agreement. But HR professionals should prepare to discuss this stance in commercial terms, with an already challenging economic landscape making additional restrictions or barriers an unwelcome business reality.
Initial headaches outweighed by necessary progress
It was clear from the roundtable that many HR professionals are still feeling their way around the finer points of the expanded sexual harassment legislation.
But there is, perhaps, comfort to be drawn from the fact that the profession is working together to clarify and resolve challenges, including the role of risk assessments, that are evidently industry-wide.
With best practices slowly taking shape around the promotion of reasonable at-work behaviour and a zero-tolerance approach to harassment, any initial headaches around new rules are easily outweighed by acceptance that they are much needed to create safer workplaces for all.
