Hide the Mistletoe, Before You Get to the Wine...

How on earth did we get to December again?

Oh well!?

Now that we're here, you might be forgiven for thinking “Great!??Employment lawyers and HR professionals are going to start telling me to be careful about the arrangements for my staff Christmas party again”.

Okay, you might not automatically be thinking about that in the lead-up to Christmas.

Instead, you might be thinking about the cost of those presents, what time to close for Christmas (if you’re able to close), and who will be doing the cooking on the special days this year.

However, before you can get to considering those Yuletide matters, you have this Christmas party on your plate.

The legal duty to take reasonable steps to prevent sexual harassment

Beyond arranging that Christmas party and paying for it, you also have something else going on.??Something that has applied since 26th October 2024.

It’s called the Worker Protection (Amendment of Equality Act 2010) Act 2023.?

As its name suggests (and doesn't it feel strange to have to say "Act...Act"?), this Act has changed the Equality Act 2010 to require employers to take reasonable steps to prevent employees (which includes employees, apprentices, self-employed people and some workers) from being subjected to unwanted conduct of a sexual nature (i.e. sexual harassment) in the course of their employment.??

It also allows the employment tribunal to increase any compensation that is awarded to the employee for discrimination (including but not limited to sexual harassment) by up to 25% for a breach of the legal duty to take reasonable steps to prevent sexual harassment.??In other words, a breach of that duty is not a separate claim, but something that a tribunal might decide to add on to further compensate the employee.

For example, if the employee was awarded ￡40,000 for loss of earnings and injury to feelings, adding 25% to these figures would bring the grand total up to ￡50,000 – a not-inconsiderable sum for most businesses.??Worse, the final sum could be much more than that, making your business that bit more strapped for cash!

Additionally, the Equality and Human Rights Commission might take action against you for failing to take reasonable steps to prevent sexual harassment.

You could also be directly or indirectly responsible for the harassment (i.e. general harassment, not just sexual harassment) of an employee in the course of their employment. The only defence to that is if you have taken?all?reasonable steps (not just reasonable steps) to prevent the harassment.

This is to say nothing of any potential criminal offences that might have happened, which could involve fines and/or possibly time spent in prison for those in the business who are responsible for preventing sexual harassment, such as company directors.

Crucially, it also extends to acts committed by third parties.??For example, if a waiter or bartender employed by the hotel, bar, restaurant, or nightclub that is hosting your Christmas party makes unwanted advances to your female staff, then this could be sexual harassment and you could still be responsible (along with the waiter's or bartender's own employer) because you chose the venue.

Back to this Christmas party: what could be “reasonable steps”?

To remove or limit your legal and financial responsibility for sexual harassment, both in relation to your Christmas party and at any other time, it’s best to take “reasonable steps” to prevent sexual harassment from happening in the first place.?

Even better than that, if you can, it’s best to take?all?reasonable steps to prevent it.

So, what are “reasonable steps”?

Well, whilst they will vary from business to business and, sticking within the prism of your Christmas party, they could include:-?

• Reviewing past incidents that might have occurred at Christmas parties, so that you can “sense check” the risks and cater for them specifically, alongside the more general risks of sexual harassment happening.??Whilst you should be mindful of all risks, assessing your “weak areas” can help you to identify those that are a priority for you.
• Updating your policies and procedures to make the law on sexual harassment clear to staff, setting out expected behaviours that are unacceptable, potential consequences?and highlighting how employees can make complaints if they need to. However, you should keep the channels for reporting concerns flexible to suit your employees and what they are comfortable with.
• Sending reminder notifications specific to the Christmas party about the law on sexual harassment, expected behaviours, giving examples of inappropriate behaviour, setting out the processes for making complaints and also the potential consequences for staff who are found to have engaged in sexual harassment.
• Speaking with the venue that is hosting your Christmas party to ensure that they understand what you consider to be inappropriate behaviour, so that they are aware of your expectations if something does happen, and checking their own processes and procedures for your reference and information.??Likewise, they might (or really should) be interested in having similar conversations with you to ensure that your employees do not sexually harass their employees.
• Checking the terms of your contract with the venue hosting your Christmas party to ensure that you are both referred to each other’s harassment policies, as well as the consequences for not following those policies.
• Performing a risk assessment that covers the likelihood that sexual harassment might happen at your Christmas party and the steps for preventing it before it happens.
• Training staff so that they are aware of their rights, but also aware of what is considered to be inappropriate behaviour, with specific reference to your policies and procedures, how to report sexual harassment and the potential consequences of it.??Also provide your managers with extra training on how to handle concerns of sexual harassment, both on how to respond at the Christmas party and how to handle those concerns in the days and weeks afterwards.
• Investigating concerns quickly, in as much detail as is needed, and sensitively, whilst supporting the employees who are raising those concerns and any witnesses to events against negative conduct from those accused of sexual harassment and potentially from others who might try to defend that person’s alleged behaviour.
• Keeping the policies, procedures and processes under regular review so that you can understand how effective they are, and can implement changes as they come to light.
• Ensuring that refresher training is given frequently.
• Keeping written records of the steps that you have followed.

Whilst these steps are illustrative of what you could do and none of this equates to you having received specific and informed legal advice on your situation, it is a good starting point for you to understand what you might need to do to avoid legal and financial costs to your business.

As a footnote to all of this, please also bear in mind that this duty to take reasonable steps to prevent sexual harassment is only one part of preventing harassment.??Taking all reasonable steps to prevent harassment (i.e. general harassment, not just sexual harassment) has existed in the law for a long time, as all forms of harassment are serious and unlawful.

Whilst simply reading all of this might feel exhausting, please also remember that there is light at the end of the tunnel: by taking reasonable steps such as these, you are covering your back, lessening the legal and financial risk to you and your business, and stamping out unacceptable conduct in your business. A win on all fronts!

Lastly, chin up: it will soon be Christmas!?

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