As most of you will be aware, 26th October 2024 brought about an update to the Equality Act 2010, which now dictates that employers need to take reasonable steps to prevent sexual harassment of their employees (during the course of their employment).
This preventative, anticipatory duty is intended to help improve the culture of the workplace. What sounds like a nominal update creates lots of questions and potential challenges for employers. Following lots of enquiries from our clients, we explore some of the key elements below.
Like other acts, elements of the updated Equality Act are objective, but the liability and consequences for non-compliance are far from objective and potentially very stern. The term “reasonable” is objective and will vary from employer to employer. As with many other acts, a sensible approach will be to carry out a full risk assessment and build a strong foundation of policies and procedures to mitigate the risks, for both the individuals in your charge and your organisation.
Conduct of a sexual nature includes a wide range of behaviour, from intrusive questions, through to inappropriate comments, including the use of digital communication (text, emails, social media etc) through to unwelcome physical contact. This wide spectrum places further pressure on the employer to consider these factors within the risk assessment. Policies will need to incorporate third parties. Within a care setting that network can be very expansive and therefore your policies should include agency workers, former employees and the families of those you care for. Although not directly liable for colleague on colleague harassment outside of work, there will be a requirement for the employer to safeguard that harassment coming into the course of employment, and therefore any complaints of this nature should be taken seriously.
Of course, a care provider, having taken reasonable steps, could still need to investigate a complaint or run an investigation. Your senior staff will be expected to facilitate that scenario. Should sexual harassment take place, the employer has a duty to prevent it happening again. Regular reviews of the policies will keep your processes relevant and safeguard the organisation and individuals within. From a commercial perspective, another thing to be aware of is the compensation uplift. Care providers that are taken to tribunal, if found to be lacking in their ‘reasonable steps’ may face an increase of 25% in compensation payouts compared pre 26th Oct 2024. This uplift is likely to be compounded by the upcoming Employee Rights Bill amendments, currently under review within the House of Commons and therefore approaching Royal Accent and likely to be enforced in 2025 /26. One prediction regarding the Employee Rights Bill might result in “reasonable steps” may become “all steps”, underlying the importance of setting the scene now within your organisation and nurturing a good culture..
Like a lot of other topics considered by care providers, a solid risk assessment, followed by setting a strong foundation of training will help you and your staff to create effective change and a positive culture within your working environment. So what do you need to consider for your training on sexual harassment?
Employers are required to provide regular training for all staff helping care professionals to understand what sexual harassment is, how to identify it and importantly, how to prevent it.
Due to the nature of the subject, it is very likely your staff team will need to approach this from different angles, depending on their role and therefore whether they will need to handle a complaint and support others and follow up with investigations. You should also consider the levels of support that an individual who has experienced harassment may require and whether that requires internal ‘champions’ or ‘guardians’.
Care professionals should be provided with training spanning the three types of harassment and specific to their role. Your colleagues need to understand what to do if they witness or experience harassment and appropriate actions to take. It is obviously important to keep track of who has completed the relevant training and when the training may be applicable again.
Speak to us today to find out how we support your organisation with both Harassment in the Workplace training and Promoting a Safer Workplace for those in a position to influence change within your organisation. Through various delivery modes and digital compliance tracking we can help you to safeguard your organisation and build upon the good culture.