Welcome to the next article in the Building Beyond Boundaries series. In this series of articles, our employment law team will be looking at the legal and sectoral issues faced by the Construction Sector. We will be providing legal insight and practical tips to help build a solid (and bigger!) foundation for equality in the sector.
Building Beyond Boundaries: The Duty to Prevent Sexual Harassment Comes into Force this Week!
From Saturday 26 October 2024, the law will require employers to take proactive steps to prevent sexual harassment. This change will be particularly important for high-risk sectors like construction. While the devastating impact of sexual harassment on victims is well-known, there is less awareness about the increasing legal and financial risk to employers. Employment Tribunals will, from 26 October 2024 be able to award up to 25% uplift in compensation where employers fail to take reasonable steps to prevent sexual harassment, a serious concern for any employer.
Despite ongoing efforts to improve diversity, equity and inclusion, the construction industry remains a higher risk industry. This is in part due to gender and power imbalances between employees in certain types of work environments, such as isolated construction sites. In this article, we will explore what constitutes sexual harassment, examine employers increased legal duties, and offer guidance on how construction companies can protect both themselves and their employees under the new legal framework.
What is Sexual Harassment?
Sexual harassment is any unwanted physical, verbal or non-verbal conduct of a sexual nature, which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment. This can include unwelcome physical conduct, sexual comments, sexually suggestive gestures or the use of job-related threats and/or rewards to solicit sexual favours. Critically, a person can be sexually harassed even if the conduct was not intentional or if they were not the intended target. Likewise, sexual harassment can be experienced by anyone regardless of sex, sexual orientation and sex of the perpetrator. It can also be intersectional, for example sexual harassment can be racialised or could be targeted at LGBTQ+ people.
Positive Duty and Reasonable Steps
The Worker Protection (Amendment of Equality Act 2010) Act will come into force on 26th October 2024. This Act introduces a positive obligation on employers to take "all reasonable steps" to prevent sexual harassment in the workplace. This reflects a fundamental change to the expectations being placed on employers and, as such, they can no longer be reactive to these situations in the workplace, instead they must be proactive.
Construction firms, like other employers, must recognise that the bar has been raised. If they have not done so already, employers must review their current approach to sexual harassment and implement new and improved measures, or else risk facing a huge financial burden if they are deemed to have failed in their duty.
Challenges for the industry
Organisations operating within the construction industry need to review, and analyse how they work, who they work with and where they work. Some challenges will be generic to all organisations, but care needs to be taken to ensure that both company, and industry, specific risks are addressed.
- Gender Imbalances – despite efforts to encourage women into the workforce, the construction industry remains a traditionally male dominated field. Unsurprisingly, where there are gender imbalances, there is a greater risk of sexual harassment.
- Cultural Barriers – as a historically male dominated industry there may be engrained attitudes that need tackling. With women only making up around 15% of the workforce, it may be that areas of the business operate with a 'boys club' mentality.
- Lack of Knowledge – this refers to both the employees' lack of understanding regarding sexual harassment and the companies' lack of knowledge of incidents. Companies must understand what has previously happened within their organisation to know how to prevent against it in the future.
- Fear of Retaliation – there must be communication from the top of the business that sexual harassment won't be tolerated. All levels of management must espouse this approach to create an environment in which employees feel safe to bring complaints to the company's attention.
Where to start?
Companies within the construction industry need to adopt a clear strategy to ensure they are adequately protecting their staff and remaining compliant with the new legislation. As a starting point, companies must implement:
- A Standalone Policy – employers should now ensure that they have a standalone sexual harassment policy which details, amongst other things, the company's approach to sexual harassment, the procedures for reporting and handling complaints and support for those involved. It is no longer sufficient for companies to briefly refer to sexual harassment within another policy.
- Risk Assessment – employers should also undertake a risk assessment for each establishment (if applicable), specific to their company and the potential risks to employees, highlighting potential risk areas in addition to determining the steps that should be taken to mitigate those risks.
- Mandatory Training – training for all levels of staff within a company, and great care must be taken when determining how to approach this.
- Staff Engagement – employers should ensure they understand where any issues lie and whether the steps being taken are having the desired effect. You may also want to consider regular 1-2-1s, incorporating questions about potential issues of sexual harassment into staff surveys, exit interviews and more broadly having an open-door policy.
- Top-Down Communication – the final element employers should consider is how their approach to preventing sexual harassment is communicated to all employees. This should include considering whether statements from the Board should be made to ensure that the position is clearly demonstrated by those at the very top of your organisation.
Conclusion
Sexual harassment remains an unfortunate reality. Whilst it will be impossible to eliminate all instances of harassment, employers can, and soon must, take proactive steps to help prevent it from happening. By carefully implementing robust policies, conducting detailed risk assessments, training and encouraging an open and respectful culture, companies in the construction industry will be equipped to protect their employees and comply with their legal obligations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
