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With the Worker Protection Act coming into force on 26 October, employers can be held legally responsible if reasonable steps to prevent sexual harassment cases have not been followed.
If raised at a tribunal, this could have significant financial and reputational implications. Therefore, it’s vital that employers take the correct steps to protect their school or trust and their employees.
In light of the changes, employers should be informed on what counts as harassment and their liabilities to prevent it from occurring.
The 'all reasonable steps' defence
Employers should demonstrate that they carry out ‘all reasonable steps’ to prevent harassment in their organisation. If a harassment case is raised with a tribunal, employers must be able to prove that they have carried out these steps so as not to be held liable for the harassment an employee has suffered.
If a tribunal can identify a further step that the employer did not consider or disregarded in their ‘reasonable steps’, then the defence fails.
Employers should consider the following steps to meet the minimum requirements of the ‘all reasonable steps defence’.
Culture review and risk assessment
Conducting a thorough review of hazards within your workplace culture allows employers to implement control measures, mitigating the risk of harassment occurring. This can be completed through staff reviews, focus groups, exit interviews, and reviewing previous management of harassment cases. The information gathered can be used to support the creation of employer policies and training.
Hazards to be aware of include:
- Power imbalances
- Workforce diversity
- Job insecurity
- Lone working
- Social events
- Already known inappropriate behaviour/culture
- Impact of students/third parties.
Without carrying out risk assessments, employers will not be complying with duties to prevent harassment, so potential risks must be identified early.
Anti-harassment policies
Any policy over two years old will likely be considered outdated if reviewed by a tribunal, so it’s vital to ensure that anti-harassment policies are reviewed regularly. Anti-harassment and anti-bullying policies should be separate but linked to an appropriate grievance policy. These should also be easily accessible to all staff within the organisation.
Keeping employees informed
A good time to introduce employees to your anti-harassment policy is upon induction. However, all staff should be regularly informed of any changes to policy throughout their employment lifetime. This should be evidenced by having your employees sign your policy to show that they have read it fully.
Bespoke training
Similarly to policies, training can become outdated and should be reviewed regularly to ensure it meets your organisation’s requirements. Tribunals look favourably on employers that do not use generic training but take a tailored approach so that it meets the specific requirements of their school or trust.
As a minimum, training should focus on equal opportunities, discrimination, prevention of harassment and how to report it. You may wish to consider the following when reviewing your training approach:
- What is harassment?
- What will the school/trust do if it happens?
- Expected/acceptable behaviour (in the workplace and at social events)
- An understanding of ‘banter’
- Steps if an employee witnesses or suffers harassment
- Steps if harassment is reported to them.
Training content should be scheduled at regular intervals, and the contents should be reviewed annually to keep the material fresh.
Additional training
For employees in more managerial positions, additional training should be provided to understand how to identify harassment and the steps your School or Trust wishes to take to respond more effectively to protect employees.
Encourage reporting
In a survey released by the Government Equalities Office, 29% of the population in employment had experienced sexual harassment in the workplace or work-related environment in the previous 12 months, with only 15% reporting their experience. With new rules surrounding harassment focused on strengthening protections against sexual harassment, it’s essential that employees feel safe when reporting any issues that could occur.
Offering a range of different reporting options will cater to differing levels of comfort amongst employees. Publicise available options with posters, training and through your School intranet to inform employees of the steps they can take to report inappropriate behaviour.
Utilising your organisation’s data can also play a large role in identifying where specific areas of the organisation have a higher proportion of trigger points, or even where a specific individual has been the source of unwanted behaviour. Easy access to data will help inform your decision-making and take proactive steps to prevent harassment.
Managing complaints
Robust policies and training are only as good as your School or Trust’s complaints procedure. Ensure it’s easy for staff to report grievances and impose appropriate sanctions when allegations are substantiated.
It’s important to consider that what is reasonable for one school or trust may differ. Following the guidance laid out by the Equality and Human Rights Commission can help to inform the steps that your organisation should take.
How EPM can support you
Ensuring your staff are fully trained is key to avoiding liability if harassment occurs. If there’s something you could have done as an employer, but didn’t, you could be held responsible. With 30 years of experience in the education sector, we can help review potential risks within your School or Trust and work with you to create bespoke training programs that ensure your team prevent unnecessary risks.
Existing EPM customers will find updated resources, including our model anti-bullying and harassment policies, procedures and risk assessment templates, available on our Customer Hub.
Whilst new legislation can feel daunting, reviewing your organisation’s policies in line with the changes is essential to ensure all employees within your School or Trust feel protected from harassment. Not only will this positively impact your workplace culture and wellbeing, but it will also ensure that you are covered from legal risks and financial implications of non-compliance.
