New law pushes security sector to tackle sexual harassment in the workplace
Has your organisation taken the right steps to comply with new legislation around sexual harassment of staff. Specialist lawyer Helen Murphie outlines the requirements here.
From 26 October 2024, all employers must take “reasonable” steps to prevent sexual harassment of their staff in the workplace under new changes to the Equality Act 2010 (EqA). Failure to comply may lead to an increase of up to 25% in compensation in the Employment Tribunal (ET) and separately enforcement action and fines from the Equalities and Human Rights Commission (EHRC).
Section 40A of the EqA represents a seismic change in UK discrimination law because it puts a new duty on employers to implement effective measures to stop sexual harassment of its employees by fellow staff and third parties. It involves anticipating potential incidents by assessing risks of sexual harassment and implementing strategies to prevent issues from arising. ETs will have to consider what steps an employer has taken to stop such unlawful conduct and also whether to increase compensation. EHRC guidance states that steps should target specific risks in the workplace and strongly recommends engaging with staff and unions.
The law
The definition of Sexual Harassment under the EqA is “unwanted conduct of a sexual nature” which has the purpose or effect of violating dignity or “creating an intimidating, hostile, degrading, humiliating or offensive environment”.
Types of conduct include:
- Touching, groping, hugging, massaging, kissing, upskirting, assault and rape
- Sending sexually explicit emails or text messages
- Sending sexually graphic pictures, posters or photos
- Suggestive looks, staring or leering and gestures
- Sexual “banter”, jokes and comments
- Propositions and sexual advances,
- Secret filming and recording
- Making promises in return for sexual favours
- Asking intrusive questions about a person’s private or sex life, or discussing their own sex life
- Sexual posts or contact on social media
- Spreading sexual rumours about a person
Section 40A (1) states: An employer (A) must take reasonable steps to prevent sexual harassment of employees of A in the course of their employment.
It is not a freestanding claim but where a claimant’s claim involving sexual harassment succeeds, an ET must consider what reasonable and effective steps an employer took to stop the conduct. Whilst reasonable steps may depend on company size, resources, work sector and risk of sexual harassment, it is clear that business cannot simply rely on lack of knowledge or resources or ignorance of the law, particularly if concerns have been raised previously.
The EHRC has also clarified that employers are also obliged under the new law to protect staff from sexual harassment by third parties including customers, contractors, suppliers and distributors.
An ET may order an uplift of up to 25% in relation to an award of compensation. This will be based on any loss of earnings, and an injury to feelings award for the hurt, humiliation and suffering caused by sexual harassment, currently:
- a lower band of £1,200 to £11,700 (less serious cases)
- a middle band of £11,700 to £35,200 (cases that do not merit an award in the upper band), and
- an upper band of £35,200 to £58,700 (the most serious cases), with the most exceptional cases capable of exceeding £58,700
The EHRC can also take action and name and shame employers who fail to comply with the new duty.
How will it impact on the security sector?
The UK security sector has its own issues and challenges. The security industry is traditionally male-dominated with a gaping gender divide: the percentage of female employees ranges from as little as 10% in some workforces to 30% in larger businesses.
Security firms are more likely to be managed by men whilst women tend to fill office-based roles. Stereotypical and outdated attitudes remain about the essential criteria of security professionals – strength and brawn, and late night working – which deter women from considering working in security.
A 2023 survey carried out by one security business and supported by industry associations* found that 99% of female workers in the industry had suffered sexual harassment with the majority of them having been subjected to unlawful conduct on three or more occasions. Women were frequently harassed by colleagues including their supervisors, and the public whilst male workers were more likely to be harassed by the public.
What are Reasonable Steps for security professionals?
1 A culture shake-up – engage and educate leadership to lead by example and set standards of behaviour. Leadership should actively participate in the drafting and implementation of its Sexual Harassment Policy with the clear message that sexual harassment will not be tolerated. Male dominated hierarchies tend to underestimate the level of sexual harassment in their workplace, fail to take steps to tackle it and/or ignore it.
2 Gain real insight into the issue. It is difficult for a business to tackle sexual harassment without this:
- Conduct a Risk Assessment to identify high risk areas
- Conduct anonymous surveys and review of past complaints, outcomes and the issuse of Settlement Agreements
- Establish Task Groups to identify issues and concerns
- Consult with employees and unions
- Look at power imbalances
3 Develop Effective internal processes to report and address sexual harassment including:
- Policies: clearly communicated, consistent application and regularly reviewed, including Sexual Harassment Policy, Code of Conduct for Staff and Third Parties, Grievance and Disciplinary Policies, a Whistle-blowing policy
- Reporting Channels: Set up confidential, and easily accessible reporting channels so that employees can report harassment without fear of victimisation; for example, anonymous hotlines, online reporting systems, and direct contact with specially trained HR officers or external advisors
- Prompt and fair investigation process: reports of sexual harassment should be taken seriously and investigated promptly, thoroughly, and impartially. Investigators should be trained on how to carry out investigations sensitively, fairly and thoroughly, whilst preserving confidentiality
- Training for grievance and disciplinary chair people to ensure investigations and internal procedures are fair and that the right outcome is reached on the established facts
- Tough penalties for perpetrators, including dismissal for gross misconduct and reporting the conduct to police. Take legal advice in appropriate circumstances.
4 Comprehensive Training and periodic refreshers – educate all staff, HR and managers about how to recognise sexual harassment, how to report it, what to do as a witness or bystander, and how to prevent it. The length and quality of training is vital. Training sessions should be tailored to the specific nature and risks of the business, including power dynamics in the workplace – for example, where there are young and junior female employees in a mainly male work environment.
5 Appoint Senior Managers and HR professionals to monitor compliance with the duty.
6 Record complaints, and outcome and monitor data from investigations and outcomes.
7 Provide support for victims, including access to counselling and mental health services, and consider temporary relocation and or assignment of duties. Sufferers should feel supported and treated respectfully and should not be subjected to retaliation.
Example
The Claimant is a young female sales administrator in a medium-sized security firm. Her immediate manager is female but most of the employees in the business are male. There is a lot of banter in the workplace and sometimes the conversation can be of a sexual nature, which makes her feel uncomfortable. One older manager, Sean,who has been employed by the business for more than 15 years, makes comments about her clothes and hair whilst having some drinks after work.
She tells her manager who laughs it off, saying that she has seen all sorts of behaviour at the firm and that Sean “loves to try it on with the new girls”. A few days later Sean comes up to the Claimant whilst she is making tea and says she looks tense and starts massaging her shoulders. She freezes in fear and does not want to return to work. The security firm has policies in place and all new employees are required to undergo training on expected standards of conduct. There is also a code of conduct.
The ET upholds the claim of sexual harassment. It increases compensation by 20% because it finds the business took no action in relation to sexual banter nor addressed Sean’s conduct, particularly because he was known to make unwanted advances to young women.
The policies were not updated and there was only a cursory reference to sexual harassment. Sean did not receive training as he was not a new employee. Whilst managers were aware of the content of the training, it was not effective as they tolerated sexual banter in the workplace together with Sean’s inappropriate behaviour which was ignored.
The survey referred to above was carried out by FFA Security Group, and sponsored by: The Institute of Strategic Risk Management (ISRM), The International Foundation for Protection Officers (IFPO UK), International Professional Security Association (IPSA).
Helen Murphie
Partner,
Employment and Head of Business Immigration
