An update to the law not only shifts the standard of preventing sexual harassment to taking ‘all reasonable steps’, it also expands the scope of employers liability to include workplace harassment committed by third parties, such as customers, contractors, visitors and anyone your team might come across when performing their job.  This third party liability isn’t just sexual harassment by the way, but harassment resulting from any of the protected characteristics. 

Refresher - what is harassment?

Legally, harassment is basically any 'unwanted behaviour' relating to a protected characteristic.  The protected characteristics are age, disability, gender reassignment, race, religion or belief, sex or sexual orientation. This can obviously be a slur or an insult, but can also be a comment or a question, even if there was no ill intent.  The key is that the behavious either violated a persons dignity, or created an intimidating, hostile, degrading, humilitating or offensive environment.  The  major factor is how the person receiving the behaviour views it and whether a reasonable person would feel the same. 

Sexual harassment specifically is unwanted behaviour of a sexual nature.  This can be obvious, but there is a huge range of things that could fall under this umbrella.  

How might this affect you as an employer?

You need only ask anyone in customer service or a public facing role for examples of a time they feel harassed and I bet they can reel you a list. Obviously, we don't want our team to be or feel harassed, and I hope that's a given. But being responsible for the actions of customers or individuals you have no control over probably feels pretty daunting.  So as an employer, what action do you actually have to take as a result of this change? 

The law is new, which means it’s not very specific yet.  Regulations are expected specifying steps employers will be expected to take, but until they come (not likely for the next year or so) the employment tribunal will probably shape the duty with case law as and when claims start to come. The Equality and Human Rights Commission have an eight step guide to preventing harassment as an employer that you can find here – this isn’t new but is a great place to start.  ACAS have also got some examples which you can find here and here.  But if you want some practical steps, we’ve boiled this down to 5 actions you can take now to reduce your risk. 

What to do next

• Spot the risks. Risk assessment time. Spend some time thinking about your danger zones. Do you have staff who work alone? events with alcohol? staff who interact with the public? Even if not, think about how your staff might be likely to face harassment, and most especially sexual harassment where the bar is higher. 
• Set the standard. Shit hot policies can save your bacon, and with the new third party rules, adding clauses to client contracts or business T and Cs can also set the tone with third parties and in the worst case show a tribunal that you are doing all you can to protect your team.  This can be complex and what is considered taking all reasonable steps will depend on your business, so being generic here won't be as useful. 
• Train the troops – A policy that sits on sharepoint won’t cut it, so look at other options. This could be buying in training for sure, but there are other options, for example a round table with your team to talk through what to do. Pay particular attention to training line managers, as middle management can sometimes be where a brilliant central policy falls down.
• Sound the alarm. Make it easy for your team to report. Consider more than one channel, and the option for confidential reporting. 
• Show your workings – Document what you’ve done, keep it, and diarise to check in and revisit it in a year.   Hopefully you'll never need it, but if a harassment claim actually hits your desk, this documentation could stand between you and a lost claim. 

Most importantly, if a report of harassment or sexual harassment comes through, you need to act quickly and you need to act right.  A solid action plan before this ever happens will give you the best chance at doing right by your team, and protecting your business.   

Need some help?

Whether you want an old policy updating, a shiny new policy, a clause to drop into your third party contracts or even to outsource everything above, or if a harassment claim hits your desk and you don’t know where to start - we can help.  Led by a qualified lawyer with 16 years PQE and a decade as a senior leader in business, we can help you in a way that is tailored to you.