Sexual abuse legislation at work is changing

Across the Creative Industries, its long been acknowledged we have an issue with cases of sexual abuse and harassment and the ability to absolve ourselves of responsibility and ignore the issue have been extensive. But from Autumn 2024, that’s set to change.

Over the last few years the industry has gone through a period of huge evaluation of its issues, with abuse coming out as a priority across the sector as a whole. And whilst some parts of the sector have already began to look at how they tackle it, this legislation change may be welcomed by those who feel there are many gaps in the current legislation and feel powerless to make changes without the legal backing behind them.

So what is changing?

The new legislation updates the Equality Act 2010 placing a pre-emptive duty on employers to take “reasonable steps” to prevent sexual harassment of employees in the course of their employment and extends to the self employed.

A couple of points to flag immediately: the definition of “employee” in the Equality Act is wider than that used in other pieces of employment legislation and extends to workers and some self-employed individuals, as well as your regular payrolled employee. Furthermore, “in the course of their employment” covers activities outside the workplace, such as work drinks or off-site events; particularly relevant to the conferences in the games industry where we have seen these issues perpetuate at their most toxic. Both are points to bear in mind when considering what practical steps employers should be taking to comply with this duty (see below).

In terms of the behaviour this change is intended to address, the new provisions use the existing definition of sexual harassment in the Equality Act, namely unwanted conduct of a sexual nature that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant.

When will the act come into force?

The changes are set to come into force in Autumn 2024, giving employers time to prepare for the changes. What is clear from the update, is preparation must extend to more than simply a policy and tick in a box style training. The changes must be systemic in nature to reflect a cultural shift away from accepting abusive behaviours and allow for calling out of the negativity too.

What do ‘reasonable steps’ look like?

Ultimately the test of what is reasonable will lie in the courts and tribunal systems but the legislation changes are clear that this must not be simply a box ticking exercise and must really begin to tackle the issues in the culture of your organisation. The government has promised a new “statutory code of practice” and guidance on what measures you will need to take. Whilst it will not mandate what those reasonable steps look like, it is very clear that the measures are set to tighten the definitions and implications that a duty of care is sufficient to deal with abuse.

The onus will be on employers and events organisers to ensure they are proactively considering the implications of the reasonable steps and therefore its likely you’ll need to get proper HR advise to ensure you really are taking the appropriate measures.

This must not be a box ticking exercise and must really begin to tackle issues in your organisation’s culture

Whilst the current guidance by the Equalities and Human Rights Commission say the following, we expect to see this taken further:

• Develop and communicate an effective anti-harassment policy – The guidance sets out in detail what such a policy should contain, including a definition of sexual harassment, a statement that such behaviour will not be tolerated and is unlawful and an effective procedure for receiving and responding to complaints. Policies should be actively communicated to staff, including as part of the induction process, and the effectiveness of any policies should be evaluated on a regular basis (at least annually).

• Assess and minimise risk in your business – This would include considering whether there are any factors that might increase the likelihood of sexual harassment taking place in your workplace (e.g. job insecurity, power or gender imbalances, a lack of diversity overall, etc.) and the steps that can be taken to minimise them.

• Engage and train staff – Staff should be trained on what sexual harassment in the workplace looks like, what to do if they experience it, either direct or as “bystander”, and, if appropriate, how to handle complaints. The guidance recommends that employers run staff surveys and exit interviews to help them understand where any potential issues lie and whether the steps they are taking are working. Training should be tailored towards the nature of the employer, the target audience (e.g. seniority and job role) and consideration should be given to the best way of delivering training to maximise impact.

• Have effective reporting procedures in place – The new legal duty will be to take preventative steps and, therefore, the fact an employer has conducted a decent investigation after an incident of harassment will not be sufficient to avoid liability. However, the technical guidance points out that if an employer has taken effective steps to deal with an occurrence of this sort, this may help to prove that the anti-harassment policy is taken seriously by the employer and used effectively when breached. Furthermore, the deterrent effect of such steps could be considered in relation to any future acts of harassment.

We know that in practice many HR concerns and policies are thrown in a cupboard and left to gather cobwebs, but this shift towards tackling abuse is a sign that HR and employment laws will be front and central to the sector growth and we know from work going on elsewhere in the Government in relation to the sector this is very much about a shift towards using HR proactively and preventing organisations from avoiding our advise.

Where abuse is concerned this legislation will put the emphasis on employers to shift their cultures to actively show what they are doing to improve the culture in their company and ensure fairness and equality is at the very heart of how they operate. With shifting trends in talent acquisition we’re increasingly seeing Millennialls and Gen Z demand a different psychological contract to the one which many more senior people accepted. The future talent pool wants a very different contract and purpose driven organisation to older generations and if we’re not able to act we’ll see greater challenges in hiring talent for the sector.

With skills at a shortage across the industry, we need to focus on the areas we need to fix to ensure we’re handing a strong, thriving working environment to the next generation, so ignoring this legislation will come at a high cost.

What will the consequences of failing to act be?

An employer that breaches this new duty could face proceedings by the Equality and Human Rights Commission, as it will have new powers to enforce standalone breaches, i.e. even without sexual harassment having taken place. The EHRC’s intervention will not lead immediately to any financial penalty, but instead to an order or recommendation that the employer take specified steps to bring its suite of protections against harassment up to scratch and some fairly painful financial pokes in the eye if it does not comply, especially if there is then any incident of harassment.

If an employee brings a successful complaint of sexual harassment, an employer risks an uplift in compensation of up to 25% if the tribunal is satisfied that the employer has breached the new duty to take reasonable steps to prevent it. There is unlikely to be any requirement for the individual or the EHRC to show that its taking those steps would actually have made any difference.

We’re only a small business, how will this impact us?

The legislation changes affect all organisations no matter the size. Your failure to act on the changes because you’re small and don’t have in house HR will no longer be a defence for failing to deal with this issue and will leave you vulnerable to both claims, were you not to act in accordance with the law and issues with talent acquisition.

As we’ve already said this is not just about a policy but the culture of your organisation and without a full holistic view of the position you’re in with your business, you may well find it harder to get talent and do the great work you do, without the support for your people you really need. Further to that, the failure to act on this and other changes we expect to see in the sector following the evaluation that’s taken place by various bodies, including DCMS will leave you vulnerable to both legal challenges and a direct impact on your bottom line.