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The sexual harassment allegations against McDonald’s, and the subsequent criticism by its workers of the handling of such serious allegations, highlights the responsibility on employers to appropriately and adequately prevent sexual harassment in the workplace.
In our previous articles (available here and here), we set out the details of, and our recommendations for compliance with, the Worker Protection (Amendment of Equality Act 2010) Act 2023 (the “Act“), which came into force on 26 October 2024. The Act places a proactive duty on employers to take reasonable steps to prevent sexual harassment in the workplace.
The Equality Human Rights Commission (“EHRC“) has recently published further guidance (the “Guidance“) on how employers can demonstrate that they have taken reasonable steps to prevent sexual harassment. The Guidance should be implemented in addition to EHRC’s technical guidance and 8-step guide, which, as we have detailed in our previous articles, both outline steps that employers should take to comply with the preventative duty in the Act.
The Guidance states that in addition to existing HR policies, employers should introduce:
- a checklist of points to consider in order to identify areas in a workplace that may put workers at risk of sexual harassment;
- an action plan to implement the checklist; and
- monitoring logs to review the success of the checklist.
Although these were initially designed for the hospitality sector and are centred around ‘shifts’ in the workplace, the EHRC advises that they can be tailored to suit different sectors.
Let’s explore these elements in more detail…
Checklist
The checklist consists of a list of questions for more senior staff, such as team managers or supervisors, to ask themselves before, during, and at the end of a shift. For example, ‘do you know what to do if staff (including agency staff) come to you with an incident?‘.
The checklist identifies three main areas for employers to consider – (1) communication with staff, (2) changing the working environment and (3) working practices – and suggested actions to reduce the risk of sexual harassment in the workplace:
- Communication with staff: Promoting a zero-tolerance culture and informing staff that sexual harassment is taken seriously. Actions include using the brief before a shift to remind staff about the organisation’s policies on sexual harassment, and that there is a zero-tolerance culture.
- Changing the working environment: Controlling the physical and social environment to make the working environment as safe as possible. Actions include, ensuring that staff have multiple trusted individuals, aside from their manager, that they can contact if any issues arise.
- Working Practices: Ensuring policies and procedures are in place to record when sexual harassment occurs, and the way in which it is dealt with. Actions include, having a policy or a procedure in place that sets out the actions if a customer or client harasses a staff member, and ensuring all staff are aware of such policy or procedure.
Action plan
Create an action plan to set out how the checklist can be implemented in your organisation. This may involve:
- Updating your organisation’s sexual harassment policy and making sure staff are aware of it;
- Ensuring all staff are trained on the policy and your organisation’s approach, and are aware of what they need to do if sexual harassment occurs; and
- Noting which stakeholders within your organisation need to be consulted to ensure the checklist is used widely.
Monitoring logs
To monitor the success of the checklist, after each shift, ask the relevant manager/senior member of staff to complete a monitor log to record if they used the checklist before, during or after their shift, and if so, whether it was useful and/or if they suggest any changes/follow-ups.
Every quarter, review the successes and challenges of each of the actions that you have taken, and then come up with the actions that should be prioritised for the next quarter.
Concluding comments
Policies and procedures alone are not sufficient to prevent sexual harassment in the workplace, and employers must do more to satisfy the duty of care that they owe to their workers. Implementing the EHRC’s suggested checklist, action plan and monitoring logs are prudent steps to take towards ensuring your organisation’s compliance with the new duty to take reasonable steps to prevent sexual harassment in the workplace.
If your organisation fails to comply with the new duty, this may lead to reputational issues, put the safety of your workers at risk, and/or if a worker is successful in a sexual harassment claim against your business, then any compensation awarded by the employment tribunal can be increased by up to 25%.
Should you wish to discuss any of the issues raised in this article, or if you want assistance with your organisation’s compliance with the new legal obligation to prevent sexual harassment in the workplace, please do not hesitate to contact Lynsey Blyth or Hannah Meehan.
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