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Preventing sexual harassment: The ghost of Christmas party?

The Worker Protection (Amendment of Equality Act 2010) Act 2023 places a new proactive duty on employers to take “reasonable steps” to prevent (specifically) sexual harassment in the workplace, and as such, this is the first year that the duty will be in force over the festive season.

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Published 3 December 2024

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Preventing sexual harassment: The ghost of Christmas party?

From 26 October 2024, The Worker Protection (Amendment of Equality Act 2010) Act 2023 places a new proactive duty on employers to take “reasonable steps” to prevent (specifically) sexual harassment in the workplace, and as such, this is the first year that the duty will be in force over the festive season.

Although there is now a proactive duty for employers to take “reasonable steps” to prevent sexual harassment in the workplace, harassment (including sexual harassment) has been unlawful for some time. Before 26 October 2024, employers could still be held vicariously liable for harassment (including sexual harassment) carried out by employees in the course of their employment (including during work-related events). When faced with a harassment or sexual harassment claim, it was for the employer to defend it by stating that they had taken “all reasonable steps” to prevent the harassment from taking place but this defence was only properly scrutinised by the Employment Tribunal. As such, employers could generally wait for issues to surface and deal with them accordingly. The position has been significantly altered by the new duty and the onus is on employers to anticipate scenarios where sexual harassment could occur (both inside and outside the office and by third parties as well as colleagues) and then take “reasonable steps” to prevent this.

Whilst the guidance from the European Human Rights Commission (EHRC) sets out a number of key points, the cornerstone of the new duty is the need to carry out a sexual harassment risk assessment with the EHRC going so far as to say that an employer is unlikely to comply with the new duty if a risk assessment has not been carried out. EHRC guidance specifically lists “socialising outside of work” as a risk factor and gives a specific example of harassment that happens at the pub during a leaving party which would undoubtedly have a similar risk profile to a Christmas party. Employers should think about risk assessment under the new duty in a similar way to other types of risk assessment, such as health and safety. Specifically, regarding work-related social events, employers can follow the same approach as it would to assess the risks of sexual harassment in the workplace itself. Assessment and evaluation of risks will involve considering both the likelihood of the risk materialising and the severity of the impact if it does materialise and this will involve understanding the relevant workplace practices. Although it may be tempting for employers to leave work-related events out of their sexual harassment risk assessment because of the belief that it is impossible to eliminate risks altogether, which may be true, it is crucial for compliance that businesses take reasonable steps to mitigate them at least (if elimination is not possible).

Of course, this does not mean that employers turn into Scrooge and cancel the Christmas party, but it does mean that they should be taking practical steps to mitigate the risks that are identified as part of their risk assessment. Alcohol is likely always going to be a risk factor when it comes to work-related social events as it lowers inhibitions and blurs boundaries which, coupled with the less formal environment of a bar, pub or event space, can lead to employees acting very differently to how they do when they come to work every day.

Pubs and bars are still the venues of choice but employers are, and have been for some time (even before the new duty), reducing the emphasis on alcohol at these events by not having, or limiting, the amount of alcohol available (such as employees paying for their own drinks or implementing a ticketing system where employees get one or two free drinks), providing alternatives to alcohol (not everyone can drink or wants to drink and it is more inclusive to provide good non-alcoholic options) and being clear with employees that there is no expectation on staff to attend and/or drink at these events.

Other steps employers can take are to set clear expectations in advance staff communications, have clear and robust policies on harassment and sexual harassment, alcohol and drugs and events whilst also ensuring that external venues have their own harassment policies and have undertaken a risk assessment, ensure managers are clear about their responsibility to watch out for inappropriate behaviour and oversee arrangements for staff to get home safely.

It may seem like there is a lot to consider but a thorough risk assessment will highlight the issues in an employers’ own workplace and will allow it to take a view on what it can do and what is “reasonable” to do in the circumstances based on the time, cost and potential disruption. Overall, embedding a culture that discourages harassment is inevitably what employers should aim for to minimise any legal problems.

Click here to talk to our team of Employment experts.

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Longer Reads

Preventing sexual harassment: The ghost of Christmas party?

The Worker Protection (Amendment of Equality Act 2010) Act 2023 places a new proactive duty on employers to take “reasonable steps” to prevent (specifically) sexual harassment in the workplace, and as such, this is the first year that the duty will be in force over the festive season.

Published 3 December 2024

Associated sectors / services

  • Employment law for employers
  • Digital

Authors

Preventing sexual harassment: The ghost of Christmas party?

From 26 October 2024, The Worker Protection (Amendment of Equality Act 2010) Act 2023 places a new proactive duty on employers to take “reasonable steps” to prevent (specifically) sexual harassment in the workplace, and as such, this is the first year that the duty will be in force over the festive season.

Although there is now a proactive duty for employers to take “reasonable steps” to prevent sexual harassment in the workplace, harassment (including sexual harassment) has been unlawful for some time. Before 26 October 2024, employers could still be held vicariously liable for harassment (including sexual harassment) carried out by employees in the course of their employment (including during work-related events). When faced with a harassment or sexual harassment claim, it was for the employer to defend it by stating that they had taken “all reasonable steps” to prevent the harassment from taking place but this defence was only properly scrutinised by the Employment Tribunal. As such, employers could generally wait for issues to surface and deal with them accordingly. The position has been significantly altered by the new duty and the onus is on employers to anticipate scenarios where sexual harassment could occur (both inside and outside the office and by third parties as well as colleagues) and then take “reasonable steps” to prevent this.

Whilst the guidance from the European Human Rights Commission (EHRC) sets out a number of key points, the cornerstone of the new duty is the need to carry out a sexual harassment risk assessment with the EHRC going so far as to say that an employer is unlikely to comply with the new duty if a risk assessment has not been carried out. EHRC guidance specifically lists “socialising outside of work” as a risk factor and gives a specific example of harassment that happens at the pub during a leaving party which would undoubtedly have a similar risk profile to a Christmas party. Employers should think about risk assessment under the new duty in a similar way to other types of risk assessment, such as health and safety. Specifically, regarding work-related social events, employers can follow the same approach as it would to assess the risks of sexual harassment in the workplace itself. Assessment and evaluation of risks will involve considering both the likelihood of the risk materialising and the severity of the impact if it does materialise and this will involve understanding the relevant workplace practices. Although it may be tempting for employers to leave work-related events out of their sexual harassment risk assessment because of the belief that it is impossible to eliminate risks altogether, which may be true, it is crucial for compliance that businesses take reasonable steps to mitigate them at least (if elimination is not possible).

Of course, this does not mean that employers turn into Scrooge and cancel the Christmas party, but it does mean that they should be taking practical steps to mitigate the risks that are identified as part of their risk assessment. Alcohol is likely always going to be a risk factor when it comes to work-related social events as it lowers inhibitions and blurs boundaries which, coupled with the less formal environment of a bar, pub or event space, can lead to employees acting very differently to how they do when they come to work every day.

Pubs and bars are still the venues of choice but employers are, and have been for some time (even before the new duty), reducing the emphasis on alcohol at these events by not having, or limiting, the amount of alcohol available (such as employees paying for their own drinks or implementing a ticketing system where employees get one or two free drinks), providing alternatives to alcohol (not everyone can drink or wants to drink and it is more inclusive to provide good non-alcoholic options) and being clear with employees that there is no expectation on staff to attend and/or drink at these events.

Other steps employers can take are to set clear expectations in advance staff communications, have clear and robust policies on harassment and sexual harassment, alcohol and drugs and events whilst also ensuring that external venues have their own harassment policies and have undertaken a risk assessment, ensure managers are clear about their responsibility to watch out for inappropriate behaviour and oversee arrangements for staff to get home safely.

It may seem like there is a lot to consider but a thorough risk assessment will highlight the issues in an employers’ own workplace and will allow it to take a view on what it can do and what is “reasonable” to do in the circumstances based on the time, cost and potential disruption. Overall, embedding a culture that discourages harassment is inevitably what employers should aim for to minimise any legal problems.

Click here to talk to our team of Employment experts.

Associated sectors / services

  • Employment law for employers
  • Digital

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