(5 min read)
Employers must now take reasonable steps to prevent sexual harassment in the workplace, which includes anticipating scenarios in which employees may be subject to sexual harassment and taking positive steps to prevent risks from materialising. Work-related social events can significantly increase risk and therefore require separate consideration. The annual office Christmas or holiday party is no exception. For the first time, employers are expected to carry out risk assessments to assess, control and mitigate factors that may increase the risk of sexual harassment in such scenarios, including the presence of alcohol, a dancefloor, and late-night transport options.
Background
Annual office get-togethers provide an opportunity for companies to celebrate their successes of the previous year and allow colleagues to socialise in a more relaxed setting. There is an increasing recognition that workplace celebrations should replicate ordinary workplace standards and we have seen trends towards more inclusive activities in recent years. However, there remains a strong tradition in the UK, especially around Christmas, for the traditional office party. These events can lead to a raft of HR-related issues, created by the mix of free-flowing alcoholic drinks, a blurring of work and social boundaries and workplace-inappropriate behaviour.
Preventing such issues is hugely important in curbing sexual harassment in the workplace and is already on the radar of many businesses. However, it has gained greater prominence this year following the introduction of the new duty placed on employers to prevent sexual harassment in the workplace. Although the duty is limited to preventing harassment in the 'course of employment', the legislation is not clear on what this includes, but accompanying Equality and Human Rights Commission ('EHRC') guidance suggests this covers work done out-of-hours, away from the normal place of business and at social events that employees attend as part of their employment. It is best practice to cover both mandatory and voluntary attendance at work-related social events.
It is important to remember that harassment, including that of a sexual nature, is focused on impact, not intention. Inappropriate behaviours may be passed off as 'banter' or 'a bit of fun' by those displaying them but can feel like harassment by those on the receiving end. The question is: how do you spot the risks of sexual harassment and take action to prevent the risks from materialising?
Sexual Harassment Risk Assessments
Technical guidance published by the EHRC suggests that employers will be unlikely to meet the duty to prevent sexual harassment without carrying out a sexual harassment risk assessment. Whilst these specific risk assessments are a new concept, employers will have existing risk management frameworks for health and safety risks in the workplace, which could be used in this context, including for Christmas parties.
Employers should consult with key stakeholders within the business to understand the nature and extent of the risk of sexual harassment at such parties. The most effective risk assessments are those based on intelligence gathered from across the workforce, and which take into account multiple perspectives. In this case, however, it is vital that those most likely to be affected by sexual harassment are identified and consulted. This will help employers identify particular risk factors. In relation to Christmas parties, potential risk factors may (likely) include:
- expectation or pressure to attend, even if the party is held outside of working hours or far from the office location, which can result in employees feeling that they must attend even if they do not want to;
- free or heavily subsidised bars, which may send a message there is no limit on excessive alcohol consumption;
- mixing of junior and senior staff in informal settings, sometimes with overnight stays, which can result in an imbalance of power;
- a relaxed dress code which can lead to outfit choices that are more revealing than usual business attire;
- attendance of clients or exposure to other third parties, including (but not limited to) staff at the venue; and
- continuation of the celebrations at after-parties and taxi-sharing afterwards, where management is less likely to be present.
The new duty and the need to undertake sexual harassment risk assessments may cut across other risk management frameworks in relation to, for example, particularly vulnerable people or expectant mothers, and therefore will need to be part of a holistic risk management exercise (rather than siloed). A sexual harassment risk assessment for your Christmas party does not need to be a standalone document and can be factored into your risk assessment which maps and assesses risks across the workplace all year-round.
Consequences of Failing to Comply with the New Duty
As the new positive duty to prevent sexual harassment has only been recently introduced, there is not yet a body of specific case-law dealing with employers' failures to comply with the new duty. However, it is well established that employers failing to appropriately manage the risks of sexual harassment in the workplace can have very serious consequences for employers, including reputational damage, tribunal claims and EHRC enforcement action. Notable cases, such as P v Crest Nicholson and Bellman v Northampton Recruitment Limited, demonstrate the legal risks for employers who fail to address sexual harassment effectively, including events occurring outside traditional work settings or hours.
Whilst it is not possible for an employee to directly bring a claim against their employer for a breach of the preventative duty, it is important to note that an employment tribunal can increase compensation awarded in a sexual harassment claim by up to 25% if the employer has not complied with this duty.
The introduction of this preventative duty can result in intervention by the EHRC, given that tackling sexual harassment in the workplace is one of the EHRC's key priorities. The EHRC can now act against employers who do not comply with their preventative obligations, even without a specific harassment report. This includes issuing fines with no maximum limit under certain conditions.
The Health and Safety at Work Act 1974 imposes duties on employers to ensure, so far as reasonably practicable, the health, safety and welfare of their workers; and to assess the risks to employees and take appropriate measures to prevent or reduce that risk. A Private Members Bill is currently progressing through Parliament to amend the Act to extend to violence and sexual harassment, particularly against women and girls. If this Bill receives Royal Assent, a failure to prevent sexual harassment by the employer may become a criminal offence.
Next Steps: Practical Measures to Implement the Duty for Work Events
The introduction of workplace risk assessments and the implementation of appropriate steps to mitigate risks identified in those risk assessments, will assist in ensuring your organisation is compliant with the preventative duty. When preparing these risk assessments, it will be important to ensure that factors are considered which could increase the likelihood of sexual harassment and what steps can be taken to minimise them.
The good news is that the new duty does not mean you need to cancel your Christmas party. However, it does require that once risks of sexual harassment have been identified, you must implement measures to mitigate these risks from materialising. Practical steps employers may take prior to their annual workplace parties (dependent on particular risks identified following employee consultation) include:
- setting clear expectations in advance with office-wide communications, with links to your anti-harassment and other relevant policies (which should be comprehensive and up to date), including making it clear that inappropriate behaviours will be treated the same whether they take place in the workplace or at a social event;
- being clear that there is no expectation to attend, or consider asking employees if they would prefer having a party held in working hours or on-site;
- creating a role for chaperones or leaders to be responsible for appropriate behaviours during the party;
- limiting or discouraging the consumption of alcohol, including mandating limits for senior or 'chaperone' staff with a reminder to consume sensibly for everyone else, and providing a range of non-alcoholic drinks and food options so that everyone is included and able to eat a meal before drinking (if they choose to drink alcohol);
- providing training or refresher training to managers so they are clear on their responsibilities prior to and during the party;
- overseeing travel arrangements, with options other than taxi sharing or late-night trains home;
- ensuring employees know who to go to during or after the party if they have any concerns, whether about themselves or someone else; and
- checking any external venue has their own anti-harassment policies (such as 'Ask for Angela') and has undertaken a sexual harassment risk assessment.
How Can AG Help?
Given that Christmas party season is fast approaching, employers should take action now to ensure they are compliant with the duty to prevent sexual harassment.
Please do contact the authors or key contacts if you would like to discuss any of the issues raised, or if you would like our help with preparing to meet the new duty to prevent sexual harassment in the workplace.
