From 26 October 2024 employers will be under a new legal duty proactively to take “reasonable steps” to prevent sexual harassment in their workplaces.
We take a closer look at what the new duty means in practice, and share some top tips for employers.
What is the current law on sexual harassment in the workplace?
Under the Equality Act 2010, sexual harassment in the workplace is unlawful, and employers are liable for any such acts committed by their staff in the course of their employment.
The Equality Act defines sexual harassment as “engaging in unwanted conduct of a sexual nature, [that] has the purpose or effect of violating a person’s dignify or creating for that person an intimidating, hostile, degrading, humiliating or offensive environment”.
If an employer can show that it took “all reasonable steps” to prevent unlawful sexual harassment, it can avoid liability for any such claims brought against it. However, this is, in practice, a high bar and is rarely met.
What is the new duty?
Under the Worker Protection (Amendment of Equality Act 2010) Act 2023, from 26 October 2024 employers will be under a new legal duty to proactively “take reasonable steps to prevent sexual harassment of [employees and workers]…in the course of their employment”.
Where a successful claim of sexual harassment is brought, and the employer is found to have breached the reasonable steps duty, the Tribunal can award an uplift in the compensation payable, by up to 25%.
The Equality and Human Rights Commission also has enforcement powers in relation to the new duty.
So what are the reasonable steps employers can take now?
Have a zero tolerance culture and consistent messaging
Promote a zero-tolerance culture in the workplace, communicate this to staff, and commit to making sure that appropriate action is taken whenever issues arise. Ensure that the values of the organisation are clear, embedded within your culture, and modelled at every level of the organisation. Senior management in particular should lead by example.
Send out a clear and consistent message to staff that the business wants to know about issues of sexual harassment, and that anyone coming forward in good faith will be heard and respected, and will not face retaliation.
Engage with staff and assess risks to understand and prevent them
Conduct regular 1-2-1s, staff surveys and exit interviews, and have an “open door policy”. Use the data collected to reflect on and understand where any potential issues lie, and whether the steps you are taking to prevent sexual harassment are working (or whether more, or different, steps need to be taken).
It is worth considering carrying out a risk assessment, to assess the risk of staff being exposed to sexual harassment in the workplace. Consider factors that might increase the likelihood of sexual harassment both in your organisation in general, and in relation to specific roles and situations. What steps can be taken to mitigate these risks?
Have an effective anti-sexual harassment policy and reporting procedure in place
The current guidance from the EHRC is clear that employers should have a policy which deals specifically – and in detail – with sexual harassment. This is an area that is likely to need review by most employers ahead of 26 October. Consider whether anti-sexual harassment provisions could be incorporated into existing anti-harassment policies, or whether a stand-alone policy is preferable.
It would be advisable to review your current reporting / grievance/ complaints procedures to ensure that complaints about sexual harassment can be raised under a straightforward and accessible process.
You should also consider whether it may be helpful to have a “Relationships at Work Policy”, in order to monitor and spot patterns in romantic relationships between members of staff.
Implement a bespoke training programme
Training programmes should be tailored to the organisation’s specific circumstances, as well as different roles and levels of seniority. Broadly speaking, staff should be trained on the fact that sexual harassment in the workplace is unlawful, what it looks like, what to do if they experience or witness it, and (if applicable) how to handle any complaints that are made.
In industries where third-party harassment is more likely, workers should also be trained on how to address this.
Training should be mandatory and employers are advised to keep records of attendance, and send reminders for those who have failed to attend.
Carry out regular audits and reviews
Carry out regular audits and reviews of existing practices, procedures, frameworks and workplace culture to assess whether adequate steps are in place to proactively prevent sexual harassment in the workplace. If they are not, update, draw up and/or implement them as needed.
What next?
The government has signalled its intention to expand the new duty to require employers to take “all reasonable steps” to prevent sexual harassment.
It has also stated that it will expand the new duty to include an obligation to prevent sexual harassment by third parties in the workplace. In any event, the applicable EHRC guidance is clear that employers should be taking steps to prevent sexual harassment by third parties already.
It would be sensible for employers to proceed on the basis that the legislation will be expanded in the way outlined.
If you need support with carrying out a risk assessment, reviewing your existing policies or drafting an anti-sexual harassment policy, training requirements, or understanding what reasonable steps might entail for your organisation, please get in touch and we’d be happy to help.
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The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further information.