Stop it – the duty to prevent sexual harassment and what it means for the Bar

 

We have a problem with sexual harassment at the Bar. There is clear evidence in our reports, and it’s why we have asked Baroness Harriet Harman KC to lead our independent review.

Barristers working in chambers will know they must take complaints of sexual harassment extremely seriously – not only because it is unlawful under the Equality Act 2010, but it’s also a breach of Core Duty 8 (you must not discriminate). Harassment also triggers the Bar Standards Board’s reporting obligations (rC66-68, gC96 - harassment by a barrister is cited as serious misconduct).

As of 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 came into force and put in place a new positive duty to ‘take reasonable steps’ to prevent sexual harassment in all workplaces.

The aim of this legislation is to shift the focus from ‘reaction’ to ‘prevention and protection’. It puts the onus on employers to take proactive steps to stop harassment. Failure to comply with duty could result in a 25% uplift in compensation awarded. The Equality and Human Rights Commission (EHRC) also has the power to investigate, issue notices and reach binding agreements with non-compliant employers.

The EHRC has published guidance. It emphasises this is an anticipatory duty. This means employers shouldn’t wait for an incident before taking any action. They must, instead, carry out a risk assessment and put in place measures to prevent sexual harassment occurring.

So, what does this mean for us at the Bar? And how can barristers and their chambers ensure they are meeting their obligations under the new duty?

The EHRC has shared an 8-step guide to complying with the new duty.

Step 1 – develop an effective anti-harassment policy

You should already have an anti-harassment policy in place in chambers as this has been a regulatory requirement for some time.

The introduction of the positive duty is a good time to dust off that policy and ensure its up to date, includes relevant contact information, and sets out the informal and formal processes which need to be followed in the event of a complaint.

In setting out the parameters for the policy, chambers should include harassment by third parties and remedies in place to respond to complaints.

More information, including a template anti-harassment policy, is available on our ethics and practice hub.

Step 2 – engagement

You need to talk about the new positive duty, and the steps being taken in your chambers to ensure you comply. 

These discussions have the additional benefit of reminding people how to raise a complaint, how to get support if they need it; while reminding others what behaviours won’t be tolerated and what to expect if they breach the policy.

Step 3 – assess the risks

This is an essential part of the new duty and involves thinking about and reducing the risk of sexual harassment. For chambers, this should include:

• Considering potential power imbalances that create a context for harassment – how are pupils and junior members of staff protected from senior people who may be predatory?
• Thinking about evening events, late working and the impact of alcohol – we know this increases the risk of sexual harassment. What can you do to reduce that risk and ensure everyone is safe?
• More generally, reflecting on the culture of chambers and specifically whether there’s a good understanding of appropriate behaviours (are some members/employees allowed to get away with unacceptable things?).

Too often when an issue is raised, lots of people admit they were aware of it, but didn’t think it was their place to do anything. This duty is intended to tackle ‘turning a blind eye’.

Step 4 – reporting   

You need to make sure everyone knows how to report an issue. Anyone working in chambers should know who the equality and diversity officers (EDOs) are and be confident they can speak to a senior employee or head of chambers if something happens that makes them uncomfortable.

Promoting our Talk to Spot platform is something worth considering. Talk to Spot is available to anyone working in and around the Bar, and it can be easier to raise an issue anonymously, or to someone outside of chambers. Make sure everyone knows how to use it – we can provide resources promoting Talk to Spot, email us at [email protected]

Step 5 – training  

Training around harassment should be offered to everyone working in and around chambers. Any training should cover:

• What sexual harassment in the workplace looks like (including by third parties)
• What someone should do if they experience it

And for EDOs, chambers’ leaders, pupil supervisors and senior employees in chambers

• How to handle complaints

Training on tackling harassment is available from the Bar Council and you can also deliver training to colleagues yourselves. The crucial thing is reaching everybody in chambers, not just those who regularly take up this type of training. Lots of chambers have now made anti-harassment training compulsory (stand alone or part of wider equality training) for all members and employees.

Remedial training can also be helpful after an incident, particularly where there has been an informal or formal finding against someone in chambers and action is required to ensure they understand what they did wrong and change their behaviour. We have developed a one-to-one programme to help with this. Contact us for information.

Step 6 – responding to a complaint

You must have a system in place for handling complaints so you can act quickly and effectively. Carefully crafted policies can be completely forgotten or ignored in the heat of the moment when an incident occurs. This is the very time to use your policy and follow the predetermined process.

People are less and less tolerant of harassment and inappropriate behaviours – and more and more reports are being made. You should assume you will get a report, and acknowledge it is just a matter of time. On this basis the more preparation you can do in advance of a report, the better placed you’ll be to deal with it.  

By preparation, we mean think in advance about who would be best placed to investigate a complaint, taking into consideration seniority, any potential conflicts of interest and capacity. Ideally, your policy should also allow you to appoint an outside investigator - thinking in advance about who that would be is helpful.

Complaints must be handled carefully, and confidentiality is key - for everyone involved. If necessary, you should be prepared to put in place interim measures to protect a complainant from further harassment or victimisation.

We have supported chambers following complaints of harassment over the years, so if a complaint does come in, do get in touch with us – confidentially - if you need some support [email protected]

Step 7 – dealing with harassment by third parties

You need to take steps to protect third parties, and your policy should cover this. But be aware that harassment by clients, visitors to chambers, suppliers or others should also be taken seriously.

You need to be aware of the relevant reporting process – be it to their employer, another chambers, or another regulator.

You should also be prepared to support and advise members or employees if they experience harassment from a third party.

Step 8 – monitor and evaluate your actions

You should carry out regular reviews. For example, ask yourself: is the action you have taken effective? Are the systems and processes are working as they should? Note this down. This will help you demonstrate compliance with the duty and, more importantly, could protect colleagues from harassment.

As a minimum, it’s a good idea to monitor:

• Complaints: see if there are any trends or emerging issues
• Member and employee feedback: some chambers carry out regular workplace surveys and ask question eg confidence in policies, knowing who to speak to in the event of an incident
• Member and employee attendance at any training and other engagement on this issue

Stop it: a zero-tolerance approach

We all need to take these new rules seriously, not least because – at the time of writing – we’re heading into the Christmas party season when the risks of sexual harassment increase dramatically. But also, because we have work to do at the Bar to tackle this persistent problem.

Harassment blights careers, it cannot be tolerated.

If you want more information about preventing harassment and creating a better workplace at the Bar, contact us (the equality team) at [email protected].

If you have experienced or witnessed sexual harassment or inappropriate behaviour there is a lot of support available – please get in touch or make a record on Talk to Spot.