Those working in the healthcare sector have long been identified as being more likely to be affected by third party harassment than in other sectors. Following a staff survey in 2024, Steve Russell, NHS England Chief Delivery Officer, has results highlighted that 'sexual misconduct is a problem right across the health service', where workers are 'experiencing sexual harassment from patients, relatives, and other members of the public.'
The Worker Protection (Amendment of Equality Act 2010) Act 2023, which came into force on 26 October 2024, introduced a new legal obligation for employers to take reasonable steps to prevent, address, and resolve sexual harassment in the workplace.
The new act broadens employers' responsibilities by requiring them to proactively anticipate and prevent potential instances of sexual harassment. Employers are expected to take steps even in the absence of specific incidents of harassment.
This preventative duty extends beyond just worker-on-worker harassment, covering incidents involving third parties not directly employed by the organisation. For healthcare employers this will include service users, their family and friends and other individuals employees come into contact with during their work, such as other stakeholders and contractors. Depending on whether staff are based at the employer’s premises or travelling to service user properties, the potential risks will differ.
If an employer fails to meet this preventative duty, the financial consequences can be significant. In cases where an Employment Tribunal finds that a worker has been sexually harassed and the employer has not taken sufficient preventive measures, compensation may be increased by up to 25%.
NHS England has set the tone for its zero-tolerance approach to sexual misconduct in the workplace across the NHS, by launching a national approach to policies and practices for integrated care boards and trusts to adopt to ensure a safer and more respectful work environment.
Below, we have outlined the steps health and care sector employers should take to ensure they are legally compliant, and the steps NHS England have taken to address sexual misconduct across the health service. These steps can easily be adapted by employers in the wider health sector to fit the risks specific to the nature of their working environments.
The first step an employer should take is create an easy-to-understand anti-harassment policy, which is accessible and communicated to all employees. This policy should describe sexual harassment, provide examples of behaviours that are unacceptable, and describe the consequences for employees if rules are breached. It's important that the policy describes how employees can report harassment confidentially and without fear that the alleged person will retaliate.
NHS England have launched a national sexual misconduct policy and supportive assurance framework. This aims to help workers understand how they can expect to be treated at work and the employer’s expectations for how workers should act at work, how to recognise and report sexual misconduct and outline the advice and support available.
Employers must provide mandatory training sessions for all employees, including management, to ensure they understand what sexual harassment is and how to prevent it. This training needs to define harassment, include examples of inappropriate conduct, and advise how employees how to report misconduct. It's sensible to organise regular updates and refresher courses, which will help to keep employees informed and aware.
Employers must offer a safe, confidential, and accessible system for employees to report harassment. It's important that employees have multiple options when reporting, including by email, phone, or an online portal. Employees should feel confident that their complaints will be taken seriously and handled with discretion. In addition to this, the employer must protect the employee who reported the harassment against retaliation.
As part of the national approach to preventing sexual misconduct, NHS England have introduced an anonymous online reporting system where reports will be assessed and investigated by HR teams without the need for individuals to not feel comfortable disclosing their personal details.
When employers receive a complaint, they must act immediately and investigate thoroughly and fairly. All parties involved must be kept confidential during investigations and should be protected by the employer to prevent harassment during the process. If harassment has taken place, employers should enforce appropriate disciplinary action according to the company policies and the magnitude of the behaviour.
The national sexual misconduct policy contains new guidance for those conducting investigations following a report. These investigators have access to a specialist review group with links to experts in sexual misconduct and safeguarding as well as independent investigators.
Employers need to ensure the wellbeing of employees who have made harassment reports, and offer appropriate support and guidance. Examples of this can include access to counselling services or support in navigating workplace dynamics. These actions can help to maintain a healthy and respectful culture in the workplace.
NHS England confirm that workers can access support from 'specially trained allies' and 'freedom to speak up guardians' who are specially trained to support those making reports of sexual misconduct. Workers who have experienced sexual misconduct at work may also be offered a range of pastoral support and special leave if required.
The Equality and Human Rights Commission has provided some useful guidance and practical examples for review. Click here to access the guidance.
It's widely recognised that under-reporting is a fundamental issue, with staff in certain healthcare roles believing that harassment by service users and members of the public is ‘part of the job’. Implementing the practical steps set out above, particularly rolling out a comprehensive training and education programme, will not only lead to cultural change, but increased reporting by employees. This will allow employers to analyse particular risk areas and identify where changes to working environments or systems need to be made to protect employees.
For further information, please contact our employment team.
