Wet leisure sector needs to show equality opportunities…
Recent media coverage has shone a spotlight on some high-profile individuals but every individual and business in the wet leisure sector needs to show they are acting to prevent sexual harassment in the workplace, Dash Ganeson.
Employers are now under a duty to take reasonable steps to prevent sexual harassment of workers in the course of their employment. Coming into effect in October 2024, this new duty is contained in the Worker Protection (Amendment of Equality Act 2010) Act 2023. Crucially, it is a preventative duty which means that employers should anticipate scenarios when their workers may be subject to sexual harassment in the course of their employment and take action to prevent it.
If sexual harassment has taken place, employers should take action to stop it happening again. Employers will need to show the specific measures they have put in place to comply with the new duty. The Worker Protection (Amendment of Equality Act 2010) 2023 introduces a new preventative duty for employers to take reasonable steps to prevent sexual harassment in the workplace.
Sexual harassment is defined in the Equality Act 2010 as unwanted conduct of a sexual nature which has the purpose or effect of either violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Examples include unwelcome physical contact, sexual jokes or comments, sexual advances, sending sexually explicit emails/texts and displaying sexually graphic images.
BEING PROACTIVE
Significantly, the new duty holds employers accountable not only for addressing sexual harassment after it occurs but also for proactively mitigating the risk of such conduct occurring. If an employer fails to comply with the new duty, they face a number of potential consequences.
• Compensation
• Enforcement action by the EHRC (Equality and Human Rights Commission)
Practical consideration for employers, of all sizes, should include educating workers about sexual harassment and what actions amount to such conduct. It is important to refer to the Equality Act 2010 definition and to give examples of unwanted sexual conduct. Employers should also educate their workers about how to avoid committing such conduct.
• Fostering an inclusive culture in the workplace.
• Implementing a clear anti-harassment policy.
• Carrying out risk assessments.
The Guidance advises employers to consider the risks of sexual harassment occurring during employment, consider what steps it can take to mitigate those risks to prevent sexual harassment of their workers, consider which steps are deemed reasonable to take, and implement those steps. The Guidance refers to various risk factors in the workplace including power imbalances, job insecurity, customer-facing duties and a lack of diversity.
Specific risk factors that may increase the risk of sexual harassment include a male-dominated workforce, a workplace culture that permits crude/sexist “banter”, gendered-power imbalances and lone or isolated working. Significantly, the Guidance states that employers are unlikely to be able to meet the preventative duty to take reasonable steps to prevent sexual harassment if they do not carry out a risk assessment.
Employers should also consider whether a worker alleged to have committed sexual harassment may pose a wider risk to other workers or third parties. In such situations, methods such as suspension or a disciplinary process should be undertaken to mitigate any potential risk of sexual harassment posed by the worker – providing training to workers and managers.
The Guidance recommends that training should be provided to workers about the different types of harassment that can occur together with training about victimisation. The training should also cover how to raise complaints with separate training for managers who deal with complaints. The Guidance also recommends that the training is tailored for the nature of the employer and the target audience.
Where third party harassment is a risk, the training should also address this. Ensuring there are clear reporting methods of sexual harassment for workers and there is support in place for complainants. Employers should ensure that all reporting channels for sexual harassment are clear for their workers.
CLEAR REPORTING
A clear anti-harassment policy is crucial to demonstrate a zero-tolerance stance on sexual harassment. Employers should also consider who will be the nominated contact to support the complainant. This may be based on gender or level of seniority. The contacts (internal or external) must be appropriate to support the complainant and they should receive suitable training to provide that support.
The Guidance recommends that employers keep centralised, confidential records of all concerns raised (informal and formal) so that trends can be identified. Staying tuned to potential sexual harassment, employers should be proactive and look for warning signs in their workplace such as sickness absence, poor performance, a change in behaviours, resignations or comments made at exit interviews.
The new Labour Government has proposed a range of enhancements to workers’ rights although we are still waiting for the details. It is reported that it may review the preventative duty and introduce an obligation on employers to take “all reasonable steps” to prevent sexual harassment.
Prior to the general election, the Labour party also made a commitment that employers should create and maintain workplaces free of harassment including by third parties. That includes businesses in the broad wet leisure sector.
Ignore it at your own risk. All the legal jargon aside, employers who fail to create a safe environment for its employees and do not practice zero tolerance in relation to sexual harassment, will now be opening themselves to litigation with a potentially heavy cost as well as the impact of their actions or lack of it , on morale within the workforce.
