When that joke isn’t funny anymore - sexual harassment and the new law at work

Heightened festive demands can place a huge burden on hospitality staff: longer hours; multi-tasking; a surge in numbers; demanding customers with heightened expectations; and a requirement to demonstrate a friendly, professional attitude at all times.

This creates high-pressure, stressful work environments. If that weren’t enough, the festive season for many is a break from day-to-day responsibilities and characterised by an increase in alcohol consumption. Hospitality has the highest levels of sexual harassment of any industry but these stressors create a perfect storm for intolerable situations for workers and a sharp increase in sexual harassment claims.

In October, The Worker Protection (Amendment of Equality Act) Act 2023 introduced a new, positive obligation on employers to take ‘reasonable steps’ to prevent sexual harassment of employees in the course of their employment. Placing employers under an increased responsibility to make workplaces safer for employees, it covers employee-on-employee harassment and harassment by third parties. If an employer fails to take reasonable steps, it risks an employment tribunal increasing the amount of compensation if an individual’s claim of sexual harassment is successful and enforcement action being taken by the Equality and Human Rights Commission (EHRC).

The EHRC, in its Technical Guidance and 8-Step Guide (essential reading for employers), explains that ‘reasonable’ steps will vary from employer to employer and depend on various factors such as the employer’s size, the sector it operates in and the risks present in that particular workplace.

Research tells us a high-pressure or challenging environment is a risk factor. The fact that employers often overlook this is evident, anecdotally. Perhaps we know, instinctively, that humour or banter is a coping strategy in such environments. It can provide respite from daily pressures, help develop relationships and unify teams. However, it is difficult to define due to its ambiguous and subjective nature, meaning different things to different people. Something funny one day can fall flat the next. It can create a workplace culture where it is more important to be funny than show respect and sensitivity and the dark side of humour, including sexual humour, can emerge. And sexual humour is a form of sexual harassment.

A workplace risk assessment will identify this and other risk factors. Employers can then identify ‘the reasonable steps’ necessary to minimise these risks. As a minimum, employers should have a sexual harassment policy, an effective reporting procedure, train their staff and act immediately to resolve any complaint. But what steps should hospitality take to prevent the dark side of humour and its unsavoury effects from emerging?

Begin by taking steps that will help alleviate the pressure. Small, manageable changes such as structured break schedules, shift swaps, rotating shifts and daily briefings to discuss challenges will help employees balance professional and personal commitments.

Signposting or giving access to mental health resources, open communication and an open-door policy will encourage employees to seek help. Celebrating small victories – a successful service, a quick bar closing or positive customer feedback – can create a supportive environment that doesn’t have to keep pushing the limits of what’s funny to relieve daily work stresses. Larger employers might even consider involving employees in decision-making, helping them feel they have some control in what might otherwise feel like unpredictable situations.

The festive season is associated with frivolity, indulgence and glamour but the experience of a hospitality worker is often anything but. These reasonable steps will help bring about a cultural change and prevent sexual harassment.

Donna Reynolds is a Partner, Blackadders​