Harrods’ victims ‘couldn’t go to HR’ with abuse claims – New duty for Employers to proactively prevent Sexual Harassment in the workplace

Background:

Sexual harassment in the workplace is an ongoing issue that has garnered increasing attention in recent years. Public awareness, coupled with evolving forms of harassment, particularly in remote and hybrid working environments, underscores the need for stronger preventive measures.

In recent years, large organisations like McDonald’s and Snap Inc. (Snapchat) have also come under scrutiny for their roles in enabling environments where sexual harassment and assault allegedly went unchecked. In 2023, it was reported that McDonald’s faced up to two sex abuse claims a week, revealing how widespread these issues remain, even in well-established corporations and just earlier this year Snap Inc. agreed to pay $15 million to settle a lawsuit  which alleged the company engaged in discrimination against female employees, failed to prevent workplace sexual harassment, and retaliated against women who complained. These cases, alongside the revelations about Harrods, illustrate the pervasive nature of workplace harassment and the urgent need for stricter, proactive measures to prevent such misconduct.

In 2023 alone, reports and social media discussions around sexual harassment surged by 105%, indicating that more people are sharing their experiences and seeking advice. This growing public discourse emphasizes the need for employers to take proactive measures to create a safer work environment.

As workplaces continue to change, so too must the strategies for combating inappropriate conduct. Effective from 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 introduces a significant new legal obligation for employers in the UK – the duty to proactively prevent sexual harassment in the workplace. This new duty requires employers to take reasonable steps to stop harassment before it occurs, marking a shift from reactive measures to proactive prevention.

The Harrods Scandal

A stark reminder of the critical need for such measures is the recent wave of allegations against Harrods’ former owner, Mohamed Al Fayed. Al Fayed, who passed away in 2023 at the age of 94, has been accused of multiple instances of sexual harassment, rape, and attempted rape by former female employees. In a BBC documentary aired last week, over 20 women came forward to share their traumatic experiences of working for the billionaire. These women detailed how they were subjected to systematic sexual abuse, often orchestrated through an organised network of personal assistants, security guards, and doctors who enabled Al Fayed’s predatory behavior. The victims reported being summoned for intimate medical examinations by company doctors, who then provided Al Fayed with personal health information, allegedly facilitating his subsequent assaults.

One of the most chilling aspects of this scandal is the depth of the system that allowed the abuse to continue for years. Women who worked on the Harrods shop floor were frequently handpicked by Al Fayed, promoted to positions closer to him, and subjected to invasive tests under the guise of medical checks. These tests, carried out by doctors employed at Harrods, were specifically designed to determine whether the women had sexually transmitted diseases, including HIV, according to the survivors’ accounts. Many of the attacks took place in Al Fayed’s private apartment, while the Harrods management allegedly covered up the incidents, often by paying off victims or issuing public denials.

The disturbing revelations about how a large corporation facilitated and concealed sexual abuse at the highest levels illustrate why the new legal duties for employers to proactively prevent sexual harassment are so vital. The Harrods scandal underscores the importance of creating workplace environments where abuse is not only reported but actively prevented by robust systems and accountability at all levels.

This news shows just how destructive a culture of silence and complicity can be. It serves as a stark reminder of why the new legal obligations under the Worker Protection Act are both necessary and urgent in addressing the longstanding issues of sexual harassment in the workplace.

The Scope of the New Duty

The Worker Protection Act 2023 amends the Equality Act 2010 (EqA) by imposing a mandatory, proactive responsibility on employers to prevent sexual harassment. While the EqA has long prohibited sexual harassment, the new legislation takes this further by requiring employers to anticipate potential harassment and take reasonable steps to mitigate it. This shift acknowledges that, despite existing legal frameworks, workplace sexual harassment remains pervasive, often going unreported or inadequately addressed by organisations.

Under the new law, employers are not simply expected to respond when harassment happens. They must now take a preventative approach by creating a workplace environment that minimises the risk of harassment occurring in the first place. Employers are also liable for harassment conducted by their employees, even if they were unaware of the behavior, as long as it occurred in the course of employment. However, the best defence for employers in harassment claims has been, and continues to be, demonstrating that they took “all reasonable steps” to prevent the misconduct.

The new legislation expands on this by placing a specific and proactive obligation on employers to act as a matter of course, not just in response to individual incidents. Importantly, employers will no longer need to wait for harassment to occur before taking action. The new duty emphasizes the need to foresee potential risks and implement preventative measures.

Key Aspects of the New Duty

1. Proactive Prevention: The central requirement of the new duty is that employers must actively prevent sexual harassment in the workplace. This involves identifying situations where harassment is more likely to occur and putting in place appropriate policies, procedures, and training to mitigate the risk. Employers must ensure that all employees are aware of these measures and understand the company’s zero-tolerance approach.
2. No Independent Cause of Action: It is important to note that this duty does not create a new legal claim for employees. Instead, an employer’s failure to comply with the duty will only be considered by a tribunal in cases where an employee’s sexual harassment claim has been upheld. In such cases, a tribunal may increase the compensation awarded by up to 25% to the claimant if it finds that the employer did not fulfil its preventative duties.
3. Enforcement by the EHRC: The Equality and Human Rights Commission (EHRC) will play a key role in enforcing the new duty. It will have the power to investigate potential breaches and require employers to take corrective actions. This could include serving notices that compel employers to develop action plans to remedy the issues and prevent future breaches. The EHRC also has the authority to seek legally binding agreements or even injunctions against employers who fail to comply. Although the EHRC’s resources are limited, its increased power under the new Act is likely to prompt greater scrutiny and could lead to reputational damage for companies that fall short.
4. Third-Party Harassment: The legislation does not explicitly address third-party harassment – harassment from clients, customers, or visitors. However, employers are still expected to take preventative steps in this regard. Failure to address harassment from third parties may not directly lead to compensation claims but could result in investigations and sanctions from the EHRC. Therefore, employers should treat third-party harassment as seriously as internal incidents.

Practical steps for Employers

Given the anticipatory nature of the new duty, it is crucial that employers start taking proactive steps now to align with the legislation that will come into force in October. The reasonable steps that are expected of an employer will vary depending on factors such as the size of the business, its sector, and the resources available. Larger companies will naturally be expected to implement more robust preventative measures, while smaller businesses will be required to adapt the guidance to their scale. Employers who delay implementing these measures could face legal, financial, and reputational consequences. Below are some key actions that employers should consider:

• Review and Update Policies

A comprehensive review of existing anti-harassment and sexual harassment policies is essential. Employers should ensure their policies reflect the new legal duty to prevent harassment proactively. Consider introducing a standalone sexual harassment policy if none exists or update general anti-harassment policies to be more specific and robust.

Policies should be clear, accessible, and regularly communicated to all staff. Employees must understand their rights, how to report harassment, and the consequences of such behavior. For example, disciplinary and grievance procedures should be reviewed and revised to ensure they provide clear routes for reporting and addressing complaints of sexual harassment.

• Conduct a Risk Assessment

Employers need to conduct thorough risk assessments to identify potential sources of sexual harassment within their workplace. This involves reviewing internal data such as past complaints, exit interviews, and employee surveys. Risk assessments should also consider external factors, including interactions with clients, customers, or visitors, as harassment from third parties is also a concern under the new law.

Identifying high-risk areas, departments, or job roles that are more vulnerable to harassment is crucial. Employers should also evaluate how remote work, or decentralised operations might expose employees to different forms of harassment, particularly in digital environments like video meetings or online communications.

• Provide Effective Training

Training is one of the most critical steps employers can take to prevent harassment. Effective training should be tailored to the specific risks and dynamics of each workplace and include all staff, from entry-level employees to senior management. This ensures everyone understands what constitutes sexual harassment, how to report it, and what the organisation’s zero-tolerance stance entails.

Training should be practical and engaging, using real-world examples and scenarios that are relevant to the organisation. It should also be ongoing, with refresher courses held regularly. Training for managers and supervisors is especially important, as they are often the first point of contact for complaints and need to know how to handle them sensitively and in compliance with the law.

• Encourage Reporting and Offer Support

Creating a culture where employees feel safe reporting harassment is vital. Employers should provide multiple avenues for employees to report issues, such as confidential hotlines, designated personnel, or online reporting tools.

Once a complaint is made, employers must ensure it is taken seriously, investigated thoroughly, and resolved promptly. Providing support to both the complainant and the accused throughout the process is equally important. Offering counselling services or access to external support networks may be beneficial in ensuring that all parties feel supported.

Employers should also monitor and audit complaints regularly to spot any recurring issues or trends. Patterns of behavior should be addressed swiftly, and repeat offenders should be dealt with decisively to prevent further harm.

• Listen to Employees and Foster an Inclusive Culture

Employee engagement is key to preventing harassment. Employers should actively seek feedback from employees, through surveys, committees, or informal discussions, to understand the working environment and whether there are any areas of concern. Employees often have valuable insights into the company culture and potential risks of harassment that management may not be aware of.

An inclusive workplace culture, where diversity and equity are prioritised, naturally reduces the likelihood of harassment. Employers might consider reverse-mentoring programs or diversity-focused initiatives to reinforce a positive, respectful workplace culture.

• Public Commitment and Awareness

Employers should make their stance on harassment clear both internally and externally. This can be achieved by updating internal communications, websites, and blogs, or placing visible notices on the premises. Employers should also remind employees about their expected conduct, particularly before events where alcohol is served, as such environments can sometimes lead to inappropriate behavior. Taking a strong public position not only helps deter harassment but also boosts the company’s reputation as a responsible, forward-thinking employer.

• Monitor Progress and Keep Records

Employers need to continuously monitor the effectiveness of their harassment prevention measures. Regularly updating risk assessments, reviewing policies, and providing ongoing training are all part of this process.

Keeping detailed records of all actions taken will be essential if an organisation needs to defend itself in an Employment Tribunal or if the EHRC investigates a complaint. By having clear documentation, employers can demonstrate that they have taken all reasonable steps to prevent harassment, which may help protect them from liability.

Closing Remarks

The introduction of the new duty under the Worker Protection Act marks a significant and necessary step forward in addressing sexual harassment in the workplace. As the Harrods revelations have shown, the failure to prevent sexual harassment, especially in organisations with systemic issues, can lead to devastating consequences for victims and significant reputational damage for businesses. The new proactive duty empowers employers to take meaningful action, reducing the risk of harassment while fostering safer and more inclusive work environments. This legislation is not just a legal requirement, but a critical move toward protecting the dignity and rights of employees across all sectors.

Contact us

Are you an employer looking for guidance and support on the new duty to proactively prevent sexual harassment in the workplace? Contact us on 0330 221 0684 or email us on [email protected] to book a free 15-minute consultation with an employment law specialist from our team.

By Suraj Purohit.

Trainee Solicitor at Kalra Legal Group.

26/09/2024.