New laws, which come into force on 26 October 2024, create a legal duty for employers to ensure that they protect workers from sexual harassment in the workplace – this extends to third party sexual harassment at a work event which is an extension of the workplace.

Employers will have a “duty to take reasonable steps” to prevent sexual harassment in the workplace. Employment tribunals will be able to increase compensation by up to 25% if they find an employer has breached their duty.

The new law will likely be strengthened by an Employment Rights Bill that is set to create a duty for employers to take “all reasonable steps” to stop sexual harassment “before it starts”.

Worker Protection Act

Under the new Act organisations will be required to take all reasonable measures to prevent sexual harassment in the workplace and should therefore prepare for an overhaul of their existing anti-harassment policies.

Work-related social events obviously will not be explicitly prohibited under the Act, but employers would need to make changes to mitigate risks and ensure compliance with the new provisions.

Employers should be aware that their duty of care to their employees does not absolve once they finish work or leave the office. It is therefore imperative to ensure that professional boundaries are maintained at any work-related event, to avoid the risk of unacceptable conduct.

A strategy designed to mitigate risks could include:

• a pre-event briefing to emphasise the importance of behaving appropriately and outlining the consequences that will arise from incidents of misconduct.
• the reduction of external risk factors, such as alcohol, to prevent any impairment to professional judgement.

The effect on companies that regularly plan social events is likely to be significant. Ultimately, following the introduction of the Act, we can expect to see a redefinition of professional boundaries and alterations to existing social norms, such as office parties or post-work drinks.

What is sexual harassment?

Sexual harassment is defined by the Equality and Human Rights Commission (EHRC) as:

• “unwanted conduct of a sexual nature”
• that has the purpose or effect of “violating a worker’s dignity” or
• “creating an intimidating, hostile, degrading, humiliating or offensive environment for that worker”.

What should employers so to prepare?

1. In order to be able to demonstrate that reasonable steps have been taken, the employer should keep records of those steps which are likely to include:

• a statement about not tolerating harassment of workers.
• a statement that makes it clear that the employer will refuse in future to deal with customers or suppliers that act in breach of their rules.

2. Conduct a risk assessment to identify and address potential risk areas within the business including:

• reviewing past incidents.
• assessing cultural problem areas.
• evaluating the impact of third-party interactions.

3. Ensure existing policies on sexual harassment are:

• comprehensive and up to date.
• establish clear and confidential reporting mechanisms for employees to report incidents of harassment.

4. Implement training on sexual harassment.

5. Provide clarity on to whom any complaints should be brought.

6. Give guidance to managers to look out for changes in behaviour and encourage one to one discussion.

7. Be alert to the fact that workers have been known to be untruthful if they think they can escape punishment highlighting that it is important, where there is no corroborating evidence (such as messages or CCTV footage) that the victim is believed, and the perpetrator is automatically suspended whilst an investigation takes place.

Summary

This marks a crucial step forward in the UK’s commitment to creating workplaces free from sexual harassment. Employers play a pivotal role in ensuring compliance and fostering a culture that promotes respect, dignity and equality for all employees. By understanding the new requirements, defining reasonable steps, facilitating straightforward claim procedures and implementing proactive measures, employers can contribute to a safer and more inclusive working environment.

For any assistance please email nicola.goodridge@goodhr.co.uk or call +44 7917 878384

Employers are increasingly attuned to the impact of disability in the workplace and the measures that can be taken to create an inclusive and supportive environment for all employees. However, while visible disabilities are often supported, there are many “hidden disabilities” that go unnoticed and the link between these challenges and performance and conduct issues is easily missed.

Employees may be reluctant to divulge hidden disabilities or be unaware that they have a disability for the purposes of the Equality Act 2010. Whatever the reason for their challenges remaining unrecognised, the impact can be significant. It can create legal risks and damage both to the employment relationship and to the employee’s own wellbeing.

What are hidden disabilities?

The term hidden disabilities covers a broad range of conditions that are not readily apparent to employers. Examples include:

• mental health disorders, such as anxiety and depression.
• neurodivergence, for example ASD (autism spectrum disorder), ADHD (attention deficit hyperactivity disorder), dyslexia, dyspraxia or dyscalculia.
• chronic illnesses and pain conditions, such as fibromyalgia, arthritis or endometriosis.
• chronic digestive conditions, such as Crohn’s, ulcerative colitis or celiac disease.
• sensory processing disorders.
• eating disorders.
• autoimmune disorders.

It is also important to remember that your staff may be supporting a dependant with a disability and, in this way, be suffering an unseen disability-related challenge impacting on their own physical and mental wellbeing. Discrimination on the grounds of association with a disabled person is also unlawful under the Equality Act.

The impact of hidden disabilities

Hidden disabilities can manifest in ways that can be mistakenly dealt with as a performance or conduct issues by an employer, particularly where the employer, manager or the employee themselves are not aware of how an underlying condition is affecting the employee’s ability to carry out their duties and work with their colleagues effectively.

This lack of understanding often leads to the employee being treated unfairly and missing out on the support and adjustments that would enable them to work to their full potential.

Examples of how a hidden disability can have an impact on performance or behaviour in a way that is not obviously connected include:

• a neurodivergent employee with ADHD might display poor timekeeping and a lack of attention to detail, while excelling at other aspects of their role – this might be construed as lack of organisation and carelessness in their work.

• an employee with a condition causing chronic pain may behave aggressively, or lose their temper with a colleague – this might be viewed as misconduct, but result from the stress of managing their pain effectively.

• sensory difficulties, for example being overstimulated by lighting, noise, smells or crowds might lead an employee to be irritable or withdrawn – this might be perceived as poor behaviour or lack of effort.

Risk of discrimination

Where performance or misconduct proceedings are commenced with an employee, but the issues to be addressed have arisen because of something which arises in consequence of the employee’s disability (whether hidden or not), this can be discriminatory – there is a connection between the “something” that results in performance/conduct measures and the disability.

Example: an employee was dismissed for gross misconduct following an aggressive outburst towards another employee. His behaviour was significantly influenced by his insulin-dependent diabetes and his blood sugar readings were outside the normal range in the period leading to the outburst, which would have an impact on his emotional regulation. The employee was therefore dismissed because of something arising from his disability: there was a link between the outburst and his condition and his dismissal was ruled as unfair.

Given the complex and unexpected ways hidden disabilities can affect performance and conduct, it is important for employers and managers to think carefully about:

• whether an underlying disability might be playing a part in the matter at hand.
• Whether the behaviour and lapse in judgement is uncharacteristic and therefore should provoke further consideration.

Example: a refusal to participate in particular activities at work may look like defiance or an unreasonable request to drop a particular duty; but where that refusal arises from a disability, an employer should consider whether removing a particular aspect of an employee’s duties would be a reasonable adjustment under the Equality Act.

In this case, the employee’s sickness absence for anxiety had been triggered by the employer requiring her, as part of her duties, to do something that, when previously done, had caused trauma because of specific circumstances at that time. Being told of the requirement caused a severe anxiety reaction. The employer did not remove the requirement and maintained that this was an essential element of the employee’s duties and she was ultimately dismissed for her refusal.

In practice, employers need to carefully consider any circumstances where an employee has developed a particular anxiety related to part of their role. This could be dealing with difficult clients, customers or members of the public, giving presentations, or working with a particular manager.

Neurodivergent employees may have specific anxieties related to a particular aspect of a role which should be accommodated in reasonable adjustments being made.

Where an employer is able to reasonably make a change for any employee experiencing a specific anxiety relating to part of their role, but gives no consideration to this, or dismisses an employee’s concerns, this could give rise to a successful discrimination claim or constructive dismissal.

What can employers do to address hidden disabilities?

There are some practical steps employers can take to create an environment where employees feel more confident to share challenges and bring hidden disabilities into the open.

• providing training and raising awareness is a key step for equipping managers and colleagues to recognise any warning signs and respond appropriately and supportively.
• inclusive policies with clear commitments to diversity and reasonable adjustments will also encourage good communication: sickness absence, flexible working and wellbeing policies should all be reviewed.
• leadership support is important and participation in events by leadership sends a positive message that diversity is celebrated and supported in the organisation.
• employee support groups can also give employees the confidence to share their challenges and are a valuable source of support and can role model good communication and practical solutions.

For advice please contact nicola.goodridge@goodhr.co.uk or call +44 7917 878384