Harassment at work, safeguarding and low-level concerns

Harassment at work – it is in the news all the time, most recently in connection with Mohamed Al Fayed and Harrods. Scratch the surface and allegations have been made across most sectors with size, location and focus of the organisation no guarantee of avoidance of harassment.

Learning from those sectors that have had to confront abusive behaviour in their past, the message is that safeguarding applies to all. The dynamics of the workplace where differentials in power are inevitable means the potential for abuse to occur always exists. 

Every organisation should include a focus on safeguarding as part of its wellbeing, anti-harassment/anti-bullying or even as a standalone policy. It should also consider introducing a low-level concerns process. 

New statutory duty

From 26 October 2024 in England & Wales, a new statutory duty, part of the Worker Protection (Amendment of Equality Act 2010) Act 2023, strengthens the protection available to employees by introducing a new duty on employers to “take reasonable steps” to prevent sexual harassment at work. 

There will be a corresponding new compensation uplift of up to 25% in Employment Tribunal claims for breach of the new duty. This duty creates a new risk area for employers. Aside from the financial impact, claims can be damaging in other ways, causing reputational damage and occupying senior management time. They can also negatively affect recruitment and employee retention.

The recent disturbing revelations about how a large company is alleged to have facilitated and concealed sexual abuse at the highest level highlights the importance of creating workplace environments where abuse is not only reported but actively prevented by robust systems and accountability at all levels. 

Guidance

To accompany the new legislation, Technical Guidance on Sexual Harassment and Harassment at Work has been published which contains detailed examples of preventative measures employers should take, along with an 8 step guide.

One of the recommendation steps is that employers should consider reporting mechanisms and confidentiality, noting it is important to create a culture where employees feel safe to report harassment, including anonymously. Any reports should be dealt with immediately, consistently, and sensitively and people raising concerns should feel supported, taken seriously and protected from reprisal. Employers should reflect on the outcome of any investigation to identify risk areas in the business or cultural issues and make changes accordingly.

This is similar to the concept of a low-level concerns reporting system, something which is now common place in the education environment. It stems from the patterns of behaviour seen time and time again, whether it be Jimmy Savile or Mohamed al Fayed, a religious leader or a head teacher – where, with hindsight, people will say they had concerns, but they did not know what to do with them. 

A low-level concerns policy is not a whistleblowing policy – it is a policy which allows people to report things they feel uncomfortable with or worried about, and it often includes self-reporting where a circumstance has arisen beyond an individual's control which could be misinterpreted. 

The organisation can monitor the reports and crucially respond to repeat concerns which may be indicative of an issue which needs to be addressed. Addressing the low-level bad behaviour stops it escalating further. 

The remaining recommended steps are:

Conduct a sexual harassment risk assessment - The purpose of this is to identify the factors that might increase the likelihood of sexual harassment and the steps that can be taken to minimise them. Employers should include any likelihood of third-party sexual harassment. They should also consult with unions or employee representatives in terms of what they think the risks are and what steps should be taken and make an action plan.

Put in place an effective anti-harassment policy, ensure that such policies are regularly reviewed and evaluated and communicated to staff including at induction. The policy must provide a way for non-employees to raise complaints. Employers should consider whether to publish policies on their website, and/or share them with contractors or clients.

Engage with staff to understand where any potential issues lie and also whether the steps the employer is taking are working via 1-2-1s, staff surveys, exit interviews, focus groups and open-door policies. This should be done on a continual basis. Employers should be alert to warning signs that harassment is taking place such as sickness absences or changes in behaviour and/or performance.

Train staff - training is one of the most critical steps employers can take to prevent harassment.  Employers should review the effectiveness of training at all levels and offer refresher sessions regularly, keeping a record of attendees. Training should ensure all workers are aware of the policies, what sexual harassment looks like, what to do if they experience or witness it and how to handle complaints. If third party harassment is likely, workers should be trained on how to address these issues. Employers should consider targeted training for different seniority levels and for specific sections of the business, with tailored situational examples.

Use confidentiality clauses only with extreme caution - only where it is lawful, necessary, and appropriate. It is important not to restrict workers from speaking out about sexual harassment.

Address power imbalances and unsatisfactory workplace culture - employers should consider a full workplace culture audit to identify issues and steps to take in this respect, e.g. appointing a sexual harassment champion, holding awareness weeks or delivering internal campaigns. It is also recommended that senior leadership deliver anti-harassment messaging.

Monitor and evaluate actions taken – it is important to evaluate the effectiveness of the steps put in place to prevent sexual harassment and implement any changes arising from that. They should consider anonymously surveying staff on their experiences and holding ”lessons learned” sessions after complaints have been resolved.

Keeping detailed records of all actions taken will be essential if an organisation needs to defend itself in an Employment Tribunal or if the EHRC investigates a complaint. By having clear documentation, employers can demonstrate that they have taken all reasonable steps to prevent harassment, which may help protect them from liability.

Comment

Sexual harassment is not a thing of the past, recent analysis of Employment Tribunal decisions in England, Wales & Scotland found that since 2019 cases relating to sexual harassment have increased by 46.5 %. Claims and complaints are likely to continue to rise as cultures change and confidence to assert concerns increases. Employers need to bring about systemic change by putting in place the measures recommended not only to reduce their risk of claims but to create safer, more positive and inclusive work environments.