New anti-harassment duties – what do they really mean?

The construction and property sector has always been a ‘people business’ orientated world. 

There is nothing at all wrong with that. The fact is that business invariably gets done in the construction world by people gathering face-to-face in offices, on sites or at social events. 

Those people are often strong and vibrant characters, and are recruited and promoted because they have such characteristics. 

So, when a government introduces new laws that impose positive and direct duties on employers to protect their staff from harassment – not only from fellow workers but also from third parties – industries in which there is a high level of people interaction, such as in construction and property, need to take note and do the right things now to show they are complying. 

Step forward the Worker Protection (Amendment of Equality Act 2010) Act 2023.

Note that these new laws deal only with sexual harassment, so employers will need to show they are protecting staff against harassment which is on grounds of or related to their sex.  

‘Harassment’ itself has a specific meaning here, being unwanted (i.e. unwelcome or uninvited) conduct of a sexual nature, which has the purpose or effect of violating someone’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for them. 

Employers are under a duty to take ‘all reasonable steps’ to prevent sexual harassment of workers in the course of their employment, wherever that might come from, including fellow employees, third party contractors, customers, experts, suppliers, the public, etc. 

This is a high bar, and employers will need to show that they have done something. This is not a question of sitting back and ignoring these regulations or just putting in place a new policy.

The Equality and Human Rights Commission (EHRC) has produced helpful guidance on these duties, and they are well worth reading. Following them is also good proof of positive action. 

The list of examples of harassment caught by these duties brings the problems alive – for example, banter (which is not acceptable just because it happens a lot), intrusive questions, sexual texts or social media messages, domineering behaviour, spreading rumours, etc. 

Businesses are expected to review working practices to highlight areas of risk, and this will, in practice, demand that all employers create a risk assessment which should be carefully drafted and personalised. 

Some examples of risks that could be identified are employees with client-facing duties, employees working alone or at night, areas of power imbalance, areas where alcohol is involved, social media groups in place, employees who travel a lot and stay away from home, client marketing events, and office social events.

As ever, the question of what is a ‘reasonable’ step for an employer will be an area of uncertainty. However, employers will be expected to tackle head on the areas of risk that they uncover and create an action plan. 

Communication will be a key consideration, establishing and acting on a culture of top-down zero tolerance, communications with staff, effective and updated training programmes and awareness messaging, updating relevant policies, and proper commercial communications with third parties, both to state the stance of the employer and to ensure that the third party has its own effective practices in place for its own staff.  

It is also very likely that regulators across all sectors will produce their own guidelines on implementing these regulations, so becoming a regulatory requirement.

The way these regulations have been implemented means that businesses that are sued for sex discrimination or harassment (which already carries uncapped levels of damages and injury to feelings awards) can have those awards increased by 25% if they have failed to implement the regulations, which is a serious risk. 

So, the new duties need action, and now. 

Brian Gegg is a partner in the employment team at Broadfield.