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A PRESCRIPTION FOR ZERO TOLERANCE
9 months into the duty to prevent sexual harassment and what the future holds.
F
rom October 2024, all UK employers have been under a mandatory duty to take reasonable steps to prevent sexual
harassment in the workplace. However, many employers are not yet fully up to speed with their obligations and, with the Government already proposing to extend the duty further under the Employment Rights Bill (“the Bill”), it is key that employers are taking their obligations seriously. This is particularly the case given harsher penalties were also introduced, giving the Employment Tribunal additional powers to uplift compensation for sexual harassment by up to 25% where they find the employer had not taken such reasonable steps.
What is sexual harassment? Sexual harassment can occur when someone engages in unwanted conduct of a sexual nature that has either the purpose or effect of violating another’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for that individual. It can occur between individuals of any gender and does not need to target one person directly. Remarks, jokes, or sexual discussions in the workplace can all amount to sexual harassment if they cause this effect – even if that was not the intention.
Claims can also arise where an individual is subjected to less favourable treatment for rejecting or submitting to sexual harassment. Employees, workers, job applicants, agency workers, volunteers, interns and self-employed professionals (e.g. locum pharmacists) are all protected. Given this wide reach, it is vital that employers are fully complying with their obligations.
The duty The duty currently requires employers to take reasonable steps to prevent sexual harassment, however, the Government has proposed extending this to a requirement to take all reasonable steps. Consequently, the standard may soon shift from doing “enough” to demonstrating that there was nothing else which could be done.
As each workplace faces different risks, there is unfortunately not a checklist which can be followed to fulfil the duty. However, taking into account the guidance published by The Equality and Human Rights Commission, some examples
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of preventative action pharmacy employers could take include:
Zero tolerance: Employers should implement a zero tolerance approach to sexual harassment and be seen to demonstrate this commitment from “the top down”, making sure that expected standards are transparent to staff, customers, suppliers, and patients alike.
Risk assessments: Employers should assess the risk of sexual harassment arising in their workplace to identify and take steps to reduce that risk. Risk assessments should take into account that risks may vary between roles and environments and that different steps may be required to mitigate these. For example, a pharmacist carrying out a 1-2-1 consultation may encounter different risks to their colleague delivering prescriptions to patients at home and these risks may again be different to those present at a social function e.g. an overnight conference. Risks and controls identified in this process should also consider workplace dynamics, such as power imbalances, diversity gaps and language barriers.
Anti-harassment policies: Employers should have implemented clear policies regarding the prevention of sexual harassment and how such issues will be handled. We recommend having a distinct sexual harassment policy which sets out that such behaviour is unacceptable. This policy should be reviewed and communicated to staff regularly and reporting channels should be identified and made clear - it will not be enough to store the policy away in the medicine cabinet. Employers should also have effective equal opportunities, anti-bullying and whistleblowing policies.
Training: All staff should have training on identifying sexual harassment, standards of behaviour expected in the workplace and how to raise a complaint. This training should be tailored to specific roles and the situations which are likely to be encountered at work – one size will not always fit all. Those with management responsibility should also receive specific training on how to handle any issues reported to them. Training should be updated and refreshed regularly and records kept of the training carried out and when.
Addressing complaints: Employers should act promptly to investigate and address any concerns raised appropriately. Those who report sexual harassment, or provide evidence in an investigation, should be protected from victimisation or detriment as a result and, when developing policies and training, employers should consider how they will protect against victimisation and detriment.
The Bill proposes to void confidentiality clauses in non-disclosure agreements and settlement agreements that prevent workers from disclosing issues of harassment. Accordingly, if this aspect becomes law, where an employer fails in their duty, it could be public knowledge. This should be borne in mind when addressing complaints and formulating how employers will prevent sexual harassment.
Third-party harassment: The duty extends to protecting staff from sexual harassment by third- parties, e.g. customers, patients or contractors and, to strengthen the protection from third-party harassment, the Government is proposing to reintroduce employer liability for all forms of third-party harassment (not only sexual harassment).
Therefore, it is essential that, when carrying out risk assessments and developing anti- harassment policies, potential risks in respect of third-party harassment are considered and addressed. This is particularly relevant in the pharmacy sector where staff work with the public and other third-parties on a daily basis. Employers should communicate their zero tolerance approach to harassment to all third- parties their staff interact with and consider how they will address complaints of harassment by a third-party. Similarly, it should be made clear to staff that harassment of those they come into contact with at work will not be tolerated.
Thorntons Law is Scotland’s leading law firm for the health care sector. Should the duty to prevent sexual harassment and the upcoming changes cause you headaches, a consultation with our Employment team is step one to a full recovery.
AMY JONES Partner 01382 346811 •
ajones@thorntons-law.co.uk ROMAN MACKENZIE Solicitor 01382 346815 •
rmackenzie@thorntons-law.co.uk
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