Protection of NHS workers against sexual misconduct

In our previous edition of our Health Employment Newsletter, Kate Shute foretold of the bolstering of protections for workers against sexual harassment which were due to come into force at the end of October. Her pithy summary, which includes details of the Equality and Human Rights Commission’s updated guidance and a link to NHS Employers’ briefing on the new guidance and other available NHS resources around protecting workers is here.

A more detailed exploration of the duty to prevent sexual harassment was published by our colleague, Mark Landon, around the time the duty came into force.

However, as our readers will be all too aware, nothing stands still for long in the world of employment law / HR, especially in 2024 – and particularly within the NHS! Therefore, you won’t be surprised to hear that there is more news to report in this edition of HEN in relation to this really important and high profile topic …..

• The new duty to prevent sexual harassment came into force, as expected on 26 October 2024. Kate and Mark’s earlier pieces give the headlines on that. However, even before it happened, further developments were afoot:
• In the Employment Rights Bill (ERB), published on 10 October 2024, the government indicated it will further amplify the duty introduced on 26 October, by requiring employers to take all reasonable steps to prevent sexual harassment of staff by co-workers and third parties (patients, relatives, suppliers, contractors etc). News on this will continue as the ERB continues its passage through the parliamentary process.
• On 16 October 2024, NSHE launched its Sexual Misconduct Policy Framework and Sexual Safety Charter Assurance Framework, which reinforce some of the key the messages introduced in last year’s Sexual Safety in Healthcare Organisational Charter (September 2023) (Sexual Safety Charter).

We set out below some of the noteworthy features of the two new NHSE frameworks, which have been described as “pivotal” and “trailblazing” in the fight against sexual misconduct in NHS workplaces.

Sexual Misconduct Policy Framework (Policy Framework) and Sexual Safety Charter Assurance Framework (Charter Assurance Framework)

The Policy Framework is a template policy which sets the standard for NHS organisations in how they should manage, investigate and take action where sexual misconduct against staff occurs. In its own words: “This policy provides information about:

• how to recognise and report sexual misconduct
• our approach to taking actions when sexual misconduct is reported, including the other policies that might be used
• the support available to people involved or harmed”

The most headline-grabbing requirement under the Policy Framework has been the introduction of an anonymous reporting form and the requirement for organisations to provide a reporting system alongside the form to enable those who experience or witness sexual misconduct to report their concerns anonymously where they feel that is necessary for them. This is, indeed, a newsworthy development. However, the Policy Framework is significant in various other respects also.

It specifies the support individuals should get and the available sources, as well as setting out the roles and responsibilities for all concerned, from the Board, to all colleagues who are encouraged to be vigilant “active bystanders”, which was also a key message in last year’s Sexual Safety Charter.

NHS Boards have responsibility for prioritising the Sexual Safety Charter principles within the organisation and guiding an appropriate culture; it must also have oversight of the organisation’s sexual misconduct data and take responsibility for improvements in sexual safety of employees.

As you would expect, HR has a prominent and pivotal responsibility to lead on the implementation of the framework and consequent learning and change.

The Policy Framework maintains a clear focus on providing support for those making disclosures / reports of sexual misconduct. It also includes a commitment, which organisations are expected to meet, that:

“Managers and members of the HR Team, freedom to speak up guardians (FTSU), wellbeing champions and colleagues from staff networks will receive training on this policy so they can offer support, advice and guidance to colleagues.”

The Policy Framework also sets out practical guidance:

• on tone and content of discussions to be conducted with those disclosing or reporting sexual harassment, with an emphasis on listening, and transparency around the process; and
• to managers about their obligations around influencing culture within their team and supporting people who make disclosures or reports; and
• definitions of relevant terminology; and
• that “Review Groups” will be convened to oversee handling of disclosures and / or reports of sexual misconduct and will involve appropriate “experts” to assist with this where appropriate. Such experts include sexual safety and / or safeguarding leads, FTSU Guardians, TU representatives; others that may be involved in some cases are LADO (Local Authority Designated Officer), “legal” [presumably the organisation’s legal advisers whether internal or external], regulators (GMC, NMC, GDC, HCPC etc), police; and
• through template records, checklists, question lists and an example anonymous reporting form
• on detailed monitoring and reviews of various aspects of the policy’s effectiveness, including data collection about how often and how the policy is used, feedback from users on the processes, outcomes from when the policy is used; and actions / improvements to be made as a result of this data.

The Charter Assurance Framework is a tool which sets out the outcomes from each principle in the Sexual Safety Charter and lists the recommended best practice actions that organisations should take to ensure they deliver the outcomes they have signed up to under the charter. Useful links below:

• NHSE Sexual misconduct policy framework for NHS orginisations
• NHS Sexual safety charter assurance framework

Comment

On top of the fast-moving employment law developments in this area, NHSE guidance adds a further layer of governance and responsibility on NHS organisations to ensure sexual harm in the workplace is addressed and minimised so far as possible; and that action to do so is taken in a consistent, appropriate and transparent way.

In turn, this is likely to mean a significant workload for NHS HR teams in terms of strategy, policy review, training, implementation and analysis.

Our team of experts have vast levels of experience in assisting our NHS clients with these important and complex issues. If you need support with your work in this area, please contact your usual Health Employment adviser, or one of these Partners: Emlyn Williams, Saira Ali, Sejal Raja, and Nick Newman.