From 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 imposes an obligation on employers to take proactive steps to prevent sexual harassment in the workplace. Here we explain what this change means for law firm employers, the steps they should take and how the team at Bellevue Law can help.
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What is changing?
Sexual harassment is already illegal, and employers can be liable when it occurs at work. And the SRA has made it clear for some time that it considers workplace culture and non-financial misconduct (including sexual harassment) to be regulatory issues, and requires law firm partners to challenge unfair or disrespectful behaviour, including harassment. The regulator has reported a significant increase in complaints of sexual misconduct in recent years.
However, the new law goes further, creating a positive duty on employers to take reasonable steps to prevent sexual harassment of employees in the course of their employment.
Guidance published by the Equality and Human Rights Commission (EHRC) makes it clear that employers are expected to anticipate scenarios when sexual harassment may take place and take action to prevent it, as well as learning lessons from any incidents which do occur.
Where employers fail to comply, the EHRC has the power to take enforcement action. And if an Employment Tribunal finds employees have been sexually harassed and the employer did not take reasonable steps to prevent this, they can increase compensation by up to 25%.
In both cases, employers will be likely to face reputational, as well as legal and financial, consequences.
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What should employers do to comply with the new law?
The new law doesn’t specify what actions employers must take, and what is reasonable will depend on the size, type and resources of the organisation.
However, it is clear that all organisations should consider the specific risks to their own employees, whether from colleagues or third parties such as clients, customers and members of the public. Firms should conduct and document a bespoke risk assessment and mitigation plan, including considering past complaints and areas of vulnerability.
Firms should also review and update policies, and communicate these effectively to all staff. It will often be advisable to provide training as well, ideally in a manner that addresses the specific issues faced by the firm and allows for clarification of any potential areas of uncertainty or misunderstanding, such as expected conduct at work, social events and workplace relationships.
Firms should take compliance with the new duty seriously and not treat it as a tick-box exercise. The message that sexual harassment is entirely unacceptable needs to come from the top, and policies must be seen to apply to everyone, however senior.
What if we have a complaint of sexual harassment?
Unfortunately, sexual harassment is very common, so many employers will have to address allegations of misconduct at some point in time.
Firms should consider how to ensure employees feel safe reporting concerns – some choose to provide the option of reporting to a trusted external provider.
Investigations and disciplinary processes should be conducted thoroughly and with care and respect for all parties, including both the complainant and the alleged wrongdoer. These are complex and difficult proceedings, with significant ramifications for both parties and the employer, and it is usually sensible to take advice on how to manage them.
And firms should consider any lessons to be learnt and whether there are steps they can take to prevent similar issues arising in future.
How can Bellevue Law help?
Our team of 17 partner-level employment lawyers has extensive experience of advising on sexual harassment, discrimination and other equalities issues, providing workplace equality and diversity training and conducting investigations. We regularly advise both law firms and individual lawyers on issues of workplace culture and the intersection of employment law and regulatory obligations.
We can support you to:
- Perform an assessment of areas of risk in your firm and identify steps to address these
- Review and update policies and practices
- Provide bespoke training
- Understand the SRA’s approach to non-financial misconduct and the obligation on partners to challenge bullying, harassment and discrimination
If concerns about inappropriate behaviour are raised, we can also support you to investigate allegations appropriately and with fairness to all parties.
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Please contact your usual Bellevue Law lawyer, or reach out at [email protected] or on 020 3432 2110 if you would like our help.