Mohamed Al Fayed and sexual abuse – how employers can dismantle the “Spiders Web”?

The allegations against Mohamed Al Fayed, the former owner of Harrods, are not new but continue to shock. More than 20 female employees at Harrods have accused the billionaire of sexual assault, and a BBC documentary that aired yesterday accuses the Company of not only failing to intervene to protect employees but taking an active role to cover up allegations and silence victims over a 25 year period. The women describe a “spiders web of corruption and abuse” at the company and how powerless they felt. They allege that the ‘sexual predator’ was allowed to roam the shopfloor and pick out female members of staff as his “playthings.”

This latest spotlight on Harrods and the egregious abuse that allegedly took place within the Company, comes just over a month before the law on sexual harassment in the workplace is set to change dramatically when the Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force. The current position is that workplace sexual harassment is prohibited under the Equality Act 2010, however, an employer will have a defence to allegations brought by an employee if they have taken all reasonable steps to prevent the harassment from occurring. This being a defence available to an employer, not an obligation to have taken these steps.

The change to the law intends to shake this up and change employers’ perception of sexual harassment. From 26 October 2024 an employer will have a positive duty to prevent this type of behavior requiring them to take “reasonable steps” to prevent employees being subjected to this conduct. Instead of asking, “what did we do” once the harassment has been uncovered, employers should ask “what can we be doing” before it occurs. If an employer has not taken proactive measures the Employment Tribunal has the power to uplift sexual harassment compensation by up to 25%. Combating sexual harassment in the workplace is not about expelling “bad apples”, it requires a full assessment and potential overhaul of the workplace culture and attitudes towards unwanted conduct.

More changes on the horizon?

The new Government have suggested they may up the ante. When the Worker Protection (Amendment of Equality Act 2010) Act 2023 made its way through the House of Lords, the provisions widening the protections for employees to prevent harassment by third parties was removed. For example, in circumstance where an employee is sexually harassed by a customer, not another employee of the business. It was thought that providing protection for employees from experiencing such conduct, would inhibit free speech. In the Labour Party’s Employment Rights Green Paper, they stated that they would strengthen protection for employees and workers to include this protection. They have also stated that instead of just requiring employers to take “reasonable steps” the wording may be changed to require employers to take “all reasonable steps.” Although it is unclear what this would mean in practice, it is a statement of intent showing how seriously the new Government are in making the prevention of sexual harassment an employer’s priority.

Steps for employers?

• Staff surveys – Undertaking anonymised surveys to assess the attitudes towards sexual harassment within a company. The Trade Union Congress released statistics in May showing that their survey revealed that 2 in 3 women between the ages of 25 and 34 have experienced sexual harassment in the workplace but only 30% of those subjected to it reported it to their employer, the primary reason being that they did not believe that they would be taken seriously. An anonymised survey may allow employees to signpost an employer to problem areas in their workforce.
• Training – Provide all staff with training on what constitutes sexual harassment, how they can report it and the support available with a business. Separate training needs to be provided to senior managers to enable them to recognise harassment and take a more proactive role in tackling any rumours or ‘open secrets’.
• Protect against retaliation – to protect employees from retaliation, the employer may have to act early on which may include suspending the perpetrator or allowing the victim to take paid leave.
• Conduct a risk assessment – this can be useful to identify areas where there is an increased risk of sexual harassment, for example where there is a large power imbalance in the workforce. The Fawcett Society, the Justice Project and the EHRC Equality and Human Rights Commission all concluded in various reports that sexual harassment was linked to power imbalances and was disproportionately carried out by men against women.
• Empower bystanders – ensure that staff are aware that it is not just the victim of harassment that can make a compliant and bring it to the attention of the employer.
• Checks on third parties – implement preventive measures like background checks on suppliers customers and clients and monitoring third-party interactions with staff.
• Monitor – employers should keep records of allegations to ensure repeat offenders or trends in instances of sexual harassment can be identified and addressed.
• Investigations – it is vital that an employer ensures that all allegations are investigated. Records should be kept of all steps taken to investigate allegations including taking accurate notes of any meetings and conversations.
• Policies and procedures – ensure that policies that relate to sexual harassment are clear and that employees know where they can access them.
• Obtain board approval for settlement agreements – an employer may like to ensure that all settlement agreements entered into by an organisation that relate to an instance of sexual harassment are signed off at board level to ensure that members of the board responsible for running the business are aware of each allegation.
• Document all steps taken to prevent sexual harassment.

In a statement Harrods made clear that the company is a “very different organisation to the one owned and controlled by Al-Fayed between 1985 and 2010” and claims to be determined, “to do the right thing as an organisation, driven by the values we hold today, while ensuring that such behavior can never be repeated in the future.” Many companies will be making adjustments to the way that they operate before the change to the law on 26 October 2024.

Should you have any queries in relation to the changes and their potential effect on your business or practical advice as to what steps can be taken, please contact Linky Trott or any other member of the Edwin Coe Employment Team.

 

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