Continuing with our series of articles focussed on topical issues for employers in the Hospitality and Leisure sector, we are today looking at steps employers should be taking in advance of October 2024, when employers will be under a new duty to prevent sexual harassment. We will also consider the potential further strengthening of the existing protection for workers against sexual harassment in light of the Labour party’s plans.

It is crucial that H&L employers are prepared for the introduction of the new pro-active statutory duty and are taking steps to reduce the risk of sexual harassment of workers in hotels, bars, restaurants, coffee shops, gyms and other leisure facilities.

October 2024: Duty on employers

As it stands, employers can potentially defend claims of sexual harassment brought against the employer, provided the employer has taken reasonable steps to prevent sexual harassment in the workplace. This includes for example, having clear up to date anti-harassment policies in place, providing regular training and taking appropriate action when incidents occur.

The Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force in October 2024. It will introduce a new positive onerous duty on employers to take reasonable steps to prevent sexual harassment of their employees. This is an important change as employers will formally be required to act proactively and preventatively. The Act gives employment tribunals the power to increase compensation by up to 25% where an employer is found to have breached the new duty to prevent sexual harassment.

What ‘reasonable steps’ means will depend on the specific circumstances of the employer, for example the size and sector, and other relevant facts. Not every step will be reasonable for every employer to take.

The Equality and Human Right Commission (EHRC) plans to publish guidance on ‘reasonable steps’ in September, but businesses will need to be prepared before then to ensure compliance by October. A consultation on the EHRC guidance was launched on 9 July 2024, so there will now be a period during which responses regarding what should constitute reasonable steps will be considered.

We expect that the duty will include similar steps to those which employers must take to succeed in defending sexual harassment claims (as referred to above), but with more emphasis on being pro-active. Therefore, there is more reason than ever before to do the following:

• Ensure that anti-harassment and discrimination policies and procedures are up to date and that employees are fully aware of the organisation’s policies and where to find them. Employees should know how to raise a complaint and be made to feel that they can do so without fear of repercussions or retaliation. Complaints must be responded to promptly, fairly and thoroughly to demonstrate that they are being taken seriously. Policies can be used to promote the organisation’s commitment and practices to prevent and educate the workforce about sexual harassment.
• Training should be rolled out to educate management and employees, with the aim of preventing harassment. Training should be tailored to the role, for example, relevant to working in a bar or restaurant environment, or a hotel reception / front of house. Off the shelf training is unlikely to be sufficient. Instead, we recommend bespoke, in person training where possible.
• Disciplinary action should be taken against any employee who harasses another and employers must demonstrate to their workforce that harassment will not be tolerated. Policies and training will only take employers so far.
• Organisations must tackle underlying cultural issues at establishments, particularly where problems have arisen in the past. It will be paramount to address areas where employers are aware they are vulnerable and work on a ‘speak up’ type environment (again, reassuring those who speak up that they won’t be retaliated against).
• Undertake a risk assessment, to identify where problems may arise and which areas of the establishment are likely to require greater input to help reduce the risk of harassment.
• Senior leaders must set the tone for expectations around behaviour, ensuring that they lead on demonstrating behaviour that reflects the organisation’s values around dignity, equality, respect and inclusion.
• Monitor the gender diversity of the workforce at every level, including for recruitment and promotion. Staff surveys are a useful way to gather feedback in areas like gender equality and may reveal concerns around harassment, particularly if there are cultural problems.

This is not a ‘tick-box’ type exercise. It must be tailored and well thought out and employers will need to be able to adduce evidence of compliance with the duty.

Harassment by third parties

The provisions in the Equality Act 2010 placing a duty on employers to prevent sexual harassment by third parties were repealed in 2013. The House of Lords has objected to the re-introduction of express employers’ liability for the harassment of employees by third parties and so this was not included in the October 2024 changes. Therefore, employers are not liable for the actions of third parties (before or as a result of the October changes).

However, employers must not ignore complaints from their employees about harassment by third parties, because the new duty to prevent sexual harassment applies to sexual harassment by any perpetrator and that includes third parties, such as hotel guests, restaurant customers, visitors and contractors. Additionally, failure to deal with harassment from a third party could undermine employees’ confidence in the employer to prevent harassment generally.

Employers in the sector should be thinking now about what steps they can take to reduce third party harassment, such as:

• reviewing and updating terms and conditions with suppliers and contractors;
• introducing or reviewing existing supplier codes of conduct on acceptable behaviour and anti-harassment, and ensuring the code is promoted and enforced; and
• including wording in terms and standard communications with guests and customers that harassment of workers will not be tolerated.

Labour’s plans

Furthermore, Labour have pledged to increase sexual harassment protection to include harassment by third parties. The October changes, which were put together by the Conservatives, did not go as far as Labour would have liked.

In addition to the promise to strengthen protection against third party harassment, Labour have also committed to amending the duty on employers to take reasonable steps to tackle harassment, to a duty to take ‘all reasonable steps’.

Labour may also decide to expand the law to cover not only harassment of a sexual nature but also the prevention of misogyny and sexism in the workplace.

Deputy leader Angela Rayner has outlined plans for sexual harassment laws to protect interns and volunteers, and may even introduce tougher measures such as a ‘failure to prevent sexual harassment’ offence for employers.

The Employment group at DLA Piper work with a wide range of businesses in the H&L sector. If you have any questions or would like to discuss how you could adequately prepare for the changes, please do not hesitate to contact us at  emphandl@dlapiper.com.

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