Navigating the Skies for Turbulence: New duty to prevent sexual harassment

Employers in the Aviation sector will of course already be aware of the need to take any complaint of sexual harassment seriously but from 26 October 2024 there will be a new proactive duty on employers to "take reasonable steps" to prevent sexual harassment of their employees.

What does this mean for Aviation industry employers, and what should they be doing now to prepare for this?

Back to basics: why do employers need to tackle sexual harassment in the workplace?

The statistics indicate that much needs to be done to tackle workplace sexual harassment in the aviation sector: according to a 2020 study into flight crew well-being , 11% of UK flight attendants have formally reported sexual harassment to their employers. However, according to the same study, 61% of UK flight attendants said that they had experienced unwanted sexual behaviours - suggesting significant underreporting of sexual harassment.

The issues around sexual harassment claims aren't just about managing the immediate issue and protecting and safeguarding employees; they are also about managing consequential issues that can impact a business - including negative publicity leading to reputational damage, managing difficult questions from current and prospective clients / customers and the potential negative impact on recruitment and retention strategies.

Taking proactive steps to prevent these issues arising will not only help Aviation sector employers comply with their regulatory obligations and the new duty coming into force in October 2024 but will actually help drive an inclusive and positive workplace culture - which is essential for smooth operations both in the air and on the ground.

In addition, heightened expectations for a positive workplace culture and a (rightfully) diminished tolerance for poor behaviour, mean that Aviation sector employers that neglect to prepare for this new duty could face an increase in harassment claims.

What is the current legal requirement in relation to sexual harassment for Aviation employers?

Current legal duty

Sexual harassment is defined as unwanted conduct that is sexual in nature, where the purpose or effect of the conduct is to violate a person's dignity or create a hostile environment.

Unwanted conduct of a sexual nature encompasses a range of actions. Examples include sexual comments or jokes, displaying sexually graphic photos, spreading sexual rumours about a person, and asking intrusive questions about a person's private or sex life.

Aviation sector employers can be vicariously liable for sexual harassment committed by one of their employees against a colleague, although it is a defence for the employer to show that they have taken "all reasonable steps" to prevent that individual from doing so. As a minimum, this means:

• providing adequate and appropriate training of staff;
• dealing effectively with and investigating complaints; and
• taking appropriate disciplinary action against harassers.

Current regulatory expectations - the Civil Aviation Authority (CAA)

Eliminating discrimination is also a regulatory matter and the CAA in the UK takes a robust regulatory approach to address discrimination in the Aviation industry. On its website, the CAA emphasises its commitment to the Public Sector Equality Duty which requires it to eliminate unlawful discrimination, victimisation and harassment. As regards its expectations of Aviation employers which it regulates, it states "We expect organisations that we regulate to consider how they contribute to this and to be proactive in achieving these objectives".

New legal proactive duty on employers from 26 October 2024

New legislation will apply to all employers and will strengthen the protection from sexual harassment of employees at work, creating a new risk area for employers in the Aviation sector. It does so by introducing a new duty on employers, from 26 October 2024, to "take reasonable steps" to prevent sexual harassment. The intention of the legislation is to shift the focus from redress to prevention and protection, which adds to the onus on employers to take proactive steps.

EHRC draft guidance on the new duty

The Equality and Human Rights Commission (EHRC) has now published draft guidance on this new duty which emphasises that this is an anticipatory duty. Therefore, employers should not wait until an incident of sexual harassment occurs before taking action. Instead, they should undertake risk assessments to identify situations in which their workers may be subject to sexual harassment and take action to prevent such harassment taking place. The EHRC has launched a consultation seeking comments on the draft guidance, which aims to help employers understand their obligations.

The guidance makes reference to harassment by third parties - and whilst there is no direct legal protection for employees against third party harassment, as this was dropped from the final legislation, the guidance indicates that the new duty will require employers to take reasonable steps to prevent sexual harassment by both their own workers and third parties. The guidance indicates that the EHRC will use its enforcement powers if it finds that an employer is failing to protect its employees from sexual harassment by third parties. This is significant for Aviation employers, who will now have to take additional steps to try and protect their customer-facing employees from sexual harassment by customers and passengers - or otherwise face action from the EHRC.

Compensation uplift

There will be a corresponding new compensation uplift of up to 25% for breach of the new employer's duty to prevent sexual harassment. Employees won't be able to bring a claim for breach of the duty as it won't be a standalone claim. However, where an employee's claim for sexual harassment succeeds, the Employment Tribunal will then consider applying an uplift to any overall compensation awarded if it also considers there has been a breach of the new duty.

If sexual harassment claims are successful, the compensation payable to employees can be substantial, even without the impending threat of an uplift. For example, in Tahir v National Grid UK Ltd  [2023] an Employment

Tribunal awarded over £350,000 in compensation to an employee who resigned after suffering sexual harassment.

EHRC investigations

Organisations should also be aware of the powers available to the EHRC to investigate breaches of the Equality Act 2010. In 2023 the EHRC was so concerned about the handling of sexual harassment complaints made by staff at McDonald's UK restaurants that it led to the restaurant chain committing, very publicly, to a legal agreement with EHRC on protecting staff from sexual harassment.

From 26 October 2024, the EHRC will also have the power to take enforcement action where employers (including firms) breach the duty to "take reasonable steps" to prevent sexual harassment by their own workers or third parties.

Action points: 4 steps for employers in the Aviation sector to take

Now that the EHRC has published its draft updated technical guidance on sexual harassment to reflect the new duty on employers, employers in the Aviation sector should be taking steps now to ensure compliance with the new duty, and to foster an inclusive and positive workplace culture.

This involves organisations undertaking a comprehensive review of their current policies and procedures, training and workplace culture and implementing practical measures to help adopt a proactive stance against sexual harassment and other negative workplace behaviours. Agile policies and procedures are needed to address and demonstrate compliance in this area at both an individual level (for managers) and an organisation level.

Step One - Review and understand what you are currently doing

• Gather all policies that you have which are relevant to preventing sexual harassment. This will include your equal opportunities policy, bullying and anti-harassment policy, whistleblowing policy, data protection and disciplinary policies.
• Gather all training that you currently do in relation to these policies, and any programmes you use for communicating them (such as posters, internal newsletters, staff meetings).
• Gather all policies and programmes that you have in relation to reporting. This will include formal reporting channels and telephone hotlines run by third parties.

Step Two - Consider and review your current culture and risk points

• What is your current culture?
  • Review what claims, grievances and issues you have had, perhaps over the last three years. Do you carry out exit interviews and can you review those?
  • Do you do culture or engagement surveys? Do they ask relevant questions?
  • How are complaints recorded, investigated and resolved? Do they follow your policies? Do they adequately observe confidentiality and support individuals involved?
• Do you need to know more about your current culture and any issues?
  • Can you conduct leaving interviews or add questions around this area?
  • Can you do engagement surveys or, if you already do, can you add questions relating to `speak up' culture?
  • Can you do a culture survey that is specifically related to sexual harassment?
• What actually is your risk?
  • What are the risks of sexual harassment occurring, and where and when may it be more likely to occur?
  • Do you have any learning from issues which have arisen in relation to, for instance, relationship at work policies, alcohol consumption policies, work trip policies, social event policies?
  • What is the best way of preventing the risk of sexual harassment, as opposed to simply reacting to issues as they arise?

Step Three - Put in place an action plan

• Do you need to update your policies?
  • Do they cover social media and out of work scenarios?
  • Are your reporting mechanisms (both internal and external) sufficient?
  • Have you considered publishing your policies on your external facing website?
  • Should you have a standalone sexual harassment policy?
• Do you need to update your training or awareness or consider a campaign on this area?
  • Has everyone within the organisation received specific training on sexual harassment? Has this been done recently?
  • Is your training sufficiently targeted at the right levels of staff and tailored by role?
  • Does it include situational training and training for those who witness sexual harassment?
• Do you need to improve the way you communicate your policies to drive a zero-tolerance culture regarding harassment?
  • Have you considered appointing a senior manager as a workplace champion to assess feedback on whether policies and training are working?
  • Have you provided training to the HR team and investigating managers on how to provide support and investigate complaints in a trauma-informed manner?
  • Have you considered appointing other (more junior) staff within the organisation as points of support for those who lodge sexual harassment complaints?
• What can you do to review your culture? Can you update leaving interviews, engagement surveys and think about a culture audit?
• Can you do a risk assessment?

Step Four - Plan timing and a rolling review

Get in touch for advice

We can provide bespoke advice tailored to your organisation's needs. Our approach is not just about meeting the new requirements; it's about fostering a zero-tolerance environment that drives positive change. Our goal is to help you create effective resolution pathways, pinpoint risk areas, and ultimately cultivate a superior workplace culture.

Click here for more infomation on how we can help 

Contact us