This guidance sets expectations and best practice for eliminating and dealing with sexual harassment in the workplace. It covers issues ranging from legal obligations to actions to help prevent sexual harassment. A template policy is also included setting out the steps employers should take, in conjunction with trade unions and employees, to create workplaces where sexual harassment does not occur and is effectively responded to if it does.

In the context of research showing how harassment remains prevalent and often goes unreported, the guidance puts the onus on employers to be more proactive and inquisitive about what is going on in their workplaces, rather than simply having policies and dealing with complaints. It also aims to reflect the modern world of work, with references to social media harassment and online portals for reporting sexual harassment.

Legal guidance

Much of the guidance explains what sexual harassment is and when employers and employees can be liable for it, using many examples. A couple of areas are particularly worth noting:

• The reasonable steps defence. An employer is not liable for sexual harassment committed by a worker in the course of his or her employment if it can show it took all reasonable steps to prevent the harassment. While it is advisable to take such steps, there is no actual legal requirement in Northern Ireland to do so.

The guidance refers to how this position is changing in Great Britain. With effect from 26 October 2024, a new proactive legal obligation will apply on employers to prevent sexual harassment. The UK Equality and Human Rights Commission is also expected to update its code of practice and guidance outlining the steps that employers in Great Britain will be expected to take. Employers will need to comply with the updated code and guidance to be in the best position to defend claim. While this change doesn’t apply in Northern Ireland, employers in Northern Ireland, with employees in Great Britain, should prepare for this change.

• Bystander approach. The guidance states that promoting and providing training on the ‘bystander approach’ is a positive step which employers could take to build a workplace free from sexual and other forms of harassment. This approach encourages people to take ownership of a problem and speak up when they witness potentially dangerous situations, such as inappropriate jokes among work colleagues.
• Harassment by third parties including clients. The guidance acknowledges that employers in Northern Ireland have a legal duty to prevent third-party sexual harassment, for example, by a customer or client. Specifically, an employer is liable if it knows that the employee has been sexually harassed in the course of their employment on at least two other occasions by a third party, and not taken reasonable steps to prevent it from happening to the employee again.

This legal duty doesn’t apply in Great Britain, despite recent proposals for its re-introduction. This doesn’t mean that employers in Northern Ireland with employees in Great Britain can ignore third party harassment. As we explained in this article, an employer still risks being liable for discrimination or harassment itself if it ignores complaints about harassment by third parties and continues to put vulnerable employees at risk. And irrespective of legal risks, it simply is not good practice (and reputationally damaging) to fail to prevent staff from being harassed at work.

Steps employers are expected to take

The guidance sets out actions which the Labour Relations Agency and the Irish Congress of Trade Unions think employers should be taking or at least considering. Here are some of the notable recommendations:

• Culture. For an employer to create a workplace culture that minimises the risk of sexual harassment it should assess and recognise the extent of the problem or potential for there to be a problem, for example, gathering data from survey, grievances, exit interviews and tribunal complaints.
• Have a sexual harassment policy. Such a policy should demonstrate that the organisation takes a zero-tolerance approach to sexual harassment, with allegations of sexual harassment being investigated and dealt with appropriately according to an employer’s disciplinary policy. A template policy is included as part of the guidance. Employers should review their own sexual harassment policies in light of this template or consider adopting this template.
• Sexual harassment reporting systems. Employers need to create a safe working environment where reporting is encouraged. Employees should feel confident to report sexual harassment and that they will be believed and taken seriously. They should also know who to report sexual harassment to and how. Employers should consider using anonymous reporting tools to enable workers to report sexual harassment such as telephone helplines or online portals.
• Training. Employers should train all workers about sexual harassment, which should form part of induction procedures. Managers should also be trained on their responsibilities in maintaining appropriate standards of behaviour in the workplace and the procedures to follow where an employee reports sexual harassment.
• Sexual harassment risk areas. Employers should be alert to work environments in the organisation where sexual harassment would be more likely to occur. They should consider areas where there may be power imbalances between individuals, for example, inequalities between men and women, abuse of power between senior and junior staff, or where staff are in a customer facing role or working in isolation or in isolated locations.
• “Top down” support. Employers should ensure that leaders at all levels visibly communicate their commitment to gender equality and a zero-tolerance approach to sexual harassment. This should be reflected in formal statements, brought to the attention of all employees by other means such as during regular training, in staff meetings, in the employee handbook and integrated into the appraisal process by recognising inclusive behaviours.
• Third parties. Employers should take reasonable steps to protect employees against third party harassment, by, for example, making customers and suppliers aware of the organisation’s equal opportunities and sexual harassment policies, and requiring them to follow them.
• Workplace champion. The guidance states it can be useful to have a nominated workplace champion, confidential Dignity at Work Advisors or Harassment Officers to monitor sexual harassment issues, oversee training, and offer support to employees experiencing sexual harassment. This provides an opportunity for workers to speak in confidence with a trained person in the organisation perhaps before making a formal complaint.
• Monitor effectiveness. Employers should monitor all sex discrimination and sexual harassment strategies to ensure that they are working effectively. They should also consider quantitative and qualitative data from confidential staff/Equity, Diversity and Inclusion pulse surveys or staff engagement groups to confirm whether the policies and strategies to prevent sexual harassment are perceived by staff to be equitable and effective.

Use in legal proceedings

While the new guidance is not legally binding, it can be into account by Industrial and Fair Employment Tribunals and used by claimants in evidence. We anticipate it will be referred to regularly in sexual harassment claims. Employers would be well advised to start preparing by benchmarking their current approach to sexual harassment against the guidance.

The training team at Lewis Silkin work regularly in this area, devising training programmes highlighting issues around harassment and bullying and promoting respect in the workplace to staff, managers and HR teams. If you would like to have a conversation about how we can support you with training, listening exercises, or HR consultancy services in the area of anti-harassment, diversity and inclusion, please contact our head of training Lucy Hendley or your usual Lewis Silkin contact.