Sexual safety at work: the duty on employers to prevent sexual harassment in the workplace – what does this mean for regulators?

Earlier this year Capsticks delivered a session for the PSA where they outlined the change in the legislation, and discussed the obligations on regulatory bodies (in addition to their duties as employers). This blog revisits those obligations in summary, and focuses on what the preventative duty is likely to mean for regulators following discussion points raised at the end of the session.

On 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 came into force. The Act introduced a new proactive duty on employers to take reasonable steps to prevent sexual harassment of their workers and employees.

Obligations

Whilst the preventative duty applies to regulators in their capacity as employers, it does not strictly apply to how they execute their regulatory functions.

Nevertheless, regulators will be aware that they must comply with the public sector equality duty (PSED) requiring them to have due regard to:

• eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010
• advance equality of opportunity between people who share a protected characteristic and those who do not
• foster good relations between people who share a protected characteristic and those who do not
• be open about and report on equality issues.

As such, regulators are likely to be expected to ‘set the tone’ for both their registrant body and their employers, and the standards within the relevant profession. Agreement between regulators as to the approach to be taken to the triaging/screening of referrals, and subsequent fitness to practise decisions is encouraged. This would help develop a consistent approach between regulators and would send a clear message as to expected behaviours (for registrants and employers), but also go towards compliance with the PSED in respect of sexual safety.

Compliance with the PSED is enforced by the Equality and Human Rights Commission, and the general duty can be enforced by judicial review. It may be that applications for judicial review (which can be made by the EHRC or by a person or group dissatisfied with a regulator’s decision or approach) will be where regulators will see the PSED bite in relation to sexual harassment cases, i.e. challenges to an actual or perceived failure to uphold standards.

Impact

We expect that the changing societal approach to sexual harassment, the increased action by public sector organisations (as demonstrated by the NHS sexual safety charter), together with the new and increased preventative duty on employers across sectors, will result in an increase in referrals in respect of recent and historic sexual harassment allegations.

These types of allegations provide additional levels of complexity that need to be considered from the outset; the facts around the allegations are often highly emotive, there may be a lack of documentary evidence, a resultant need for speedy gathering of witness evidence, and a keen public eye on the regulatory process.

This may require regulators to:

• adapt their approach to initial assessment/triage of referrals of this nature
• review their approach to how seriousness is determined
• consider how a consistency of approach can be achieved amongst regulators
• consider the support that is provided for both registrants and witnesses
• take a trauma informed approached
• proactively manage the expectations of employers, complainants and registrants
• ensure all involved in progressing a referral (case handlers, investigators and panel members) understand what sexual misconduct is, how this impacts upon fitness to practise and the importance of handling cases sensitively
• review their approach to how and when historical allegations will be dealt with.

Risks and how to address them

A regulator’s approach to sexual misconduct allegations could result in claims / challenges from both the complainant and / or the regulated individual, whether through judicial reviews, civil actions, or an Employment Tribunal.

Common themes/allegations that we routinely see in claims and threatened action against regulators include:

• unconscious and conscious bias
• delay
• lack of transparency
• lack of communication
• failing to deal with complaints
• lack of empathy
• failing to acknowledge any wrongdoing.

Regulators can address these issues and mitigate the risks of challenges/complaints by providing clarity on the process from the outset and by providing regular updates on progress to manage expectations of parties involved:

• Why are you/are you not investigating the concern?
• What information is this based on?
• What is the process being followed?
• What is expected of the individual and what should they expect from you?
• What are the proposed timeframes?
• Inform them of the progress you have made, and explain any delays.