As you may have seen in the news, Lidl GB has entered into a legal agreement with the Equality and Human Rights Commission (EHRC) to prevent sexual harassment in the workplace.
The agreement arose following a judgment from the Employment Tribunal which found that Lidl GB had failed to take reasonable steps to prevent the sexual harassment of a young female employee between 2019 and 2021.
The Tribunal found that Lidl relied on its staff to submit a complaint before any action was taken. The training given to management was inadequate and that as an employer, Lidl had not taken all reasonable steps to prevent harassment.
From 26th October 2024, The Worker Protection (Amendment of Equality Act 2010) Act 2023 places a legal obligation on employers to take ‘reasonable steps’ to prevent their employees from experiencing sexual harassment. According to the EHRC, this imposes a proactive duty on employers, which means that employers can face liability for failing to take reasonable steps – even if there are no incidents of sexual harassment between employees.
As a result, training cannot simply be a tick box exercise. It also means that employers must actively take all reasonable steps to prevent sexual harassment from occurring.
By entering into agreement with the EHRC, Lidl GB have agreed to the following:
- Run a staff survey relating to sexual harassment within the workplace and assess whether additional preventative steps are necessary. This is a useful step all employers can take to ensure that they are seeking the views of staff. Not all staff in senior positions will be aware of what goes on at ground level. For example, staff can report any online communications that amount to harassment. It also allows staff to express a view that they might not necessarily want to discuss directly with management.
- Develop a system to monitor and analyse informal complaints of sexual harassment to identify ongoing risks and whether additional preventative steps are required. By doing this, employers know where the risks lie and can take action where preventative measures are required. Failure to take action where an employer is aware of an issue is likely to result in a claim.
- Monitor the effectiveness of complaint handling for new formal complaints of sexual harassment. Employers can also learn lessons about where they can improve if things have not gone well under their existing complaints process.
- Review a sample of sexual harassment complaints from 2023 and 2024 to assess any trends and risks. All employers should review historical complaints and then consider what they can do to prevent future issues.
- Arrange meetings with its existing DE&I groups to discuss risks of sexual harassment, and any additional preventative steps which could be taken. A company with the resources of Lidl GB will be able to dedicate time to this. However, even small employers with limited resources should consider where the risks lie.
- Continue to monitor and review its sexual harassment risk assessment. Any trends, or recent complaints, could result in such assessments needing to be updated.
- Further review internal harassment policies and training content, including its Relationships at Work guidance. Training and policies should be clear in terms of the standards required by the employer. Training should be regular and effective in setting out to staff what’s required of them.
The introduction of the Act seeks to prevent widespread, unquestioned harassment in workplaces; for example, what was seen in the Al Fayed scandal, where ex-employees of Harrods alleged that they had been sexually harassed by the former owner, Mohammed Al Fayed.
Dozens of ex-employees made allegations, which go back as far as the late 1980s and numerous allegations of sexual harassment have been reported in the press since 1995. However, Al Fayed never faced justice and died in 2023.
What is sexual harassment?
Sexual harassment is unwanted conduct of a sexual nature which has the purpose or effect of:
- violating someone’s dignity;
- creating an intimidating, hostile, degrading, humiliating or offensive environment for them
Unwanted conduct of a sexual nature includes a wide range of behaviours, including:
- sexual comments or jokes,
- sexist jokes,
- displaying or sharing sexually graphic pictures,
- suggestive looks or leering,
- propositions and sexual advances,
- intrusive questions about a person’s sex life or discussing your own sex life,
- sexual posts or contact on social media,
- spreading rumours about a person’s sexuality,
- unwelcome touching,
- hugging, massaging or kissing.
As well as this, criminal behaviour such as sexual assault, stalking and/or indecent exposure can all be classed as sexual harassment if they take place in the course of employment.
Reasonable employers will already have policies in place to deal with sexual harassment. However, under the new legislation, employers must take reasonable steps to prevent sexual harassment in the workplace and – in the event of a claim – be able to show that they have done so. The measures taken by the employer should not simply be a tick box exercise.
Proactive approach
Employers should now consider the following:
Workplace culture
This can vary depending on the nature of the business. If a toxic workplace culture exists, the employer must take steps to eradicate any behaviour which tolerates sexual harassment.
Policies and training
Robust policies which outline a zero-tolerance approach to sexual harassment should be implemented. The policy should cover:
- what counts as sexual harassment;
- how to make a complaint;
- how it will be dealt with;
- what amounts to a criminal matter;
- when the police will be contacted, and
- when disciplinary action will be taken.
Training is also crucial for all staff, and not just for management. It should cover what counts as sexual harassment, what the obligation is for staff in terms of their own conduct and how to prevent harassment. Training and policies should also cover social media communications and WhatsApp communications.
Safe reporting
Staff should be made aware of how to report sexual harassment in line with the employer’s policy. They should also be encouraged to speak out about harassment.
Role of management and senior staff
Management and team leaders should set the tone for conduct in the workplace. After all, no employee is going to feel comfortable reporting sexual harassment to a manager who openly makes inappropriate comments in the workplace.
Sexual harassment claims at an employment tribunal
Under the new law, the employment tribunal can now increase compensation awards for sexual harassment claims by up to 25% if it finds that sexual harassment has taken place, and that the employer failed to take reasonable steps to prevent it.
As well as a large financial penalty, employers who fail in their obligation to take reasonable steps to prevent sexual harassment risk reputational damage.
