October 26 2024: note it in your diary. That’s when the law on sexual harassment is set to change, bringing with it a new duty for employers to prevent sexual harassment at work.
Sexual harassment is, essentially, unwanted conduct of a sexual nature which violates an employee’s dignity or creates a humiliating or degrading environment. Both individual perpetrators and employers can be liable for sexual harassment, although employers can avoid liability by showing they took ‘all reasonable steps’ to prevent the harassment. Under current laws, this is simply a defence to claims – so, although it’s a good idea to do so, there’s no obligation for employers to actively prevent sexual harassment.
However, from October 26, the introduction of the Worker Protection (Amendment of Equality Act 2010) Act 2023 means that employers will be legally required to take ‘reasonable steps’ to protect employees from sexual harassment.
What if you get it wrong?
If employers don’t fulfil the new preventative duty:
Employment tribunals can increase compensation for sexual harassment claims by up to 25%. However, employees can’t bring a claim based solely on breaching the duty, and must attach this complaint to another sexual harassment claim.
The Equality and Human Right Commission (EHRC) can take enforcement action, for example, by investigating employers, issuing unlawful act notices requiring action plans to remedy/prevent breaches, and requesting court injunctions to stop employers committing an unlawful act.
What are ‘reasonable steps’?
Unfortunately, the Act doesn’t define ‘reasonable steps’. However, to help employers understand which actions to take, the EHRC has updated its technical guidance on sexual harassment at work and is consulting on this until August 6.
Essentially, employers will be expected to take practical, proportionate actions tailored to their specific workplace, with an emphasis on adopting a proactive approach. They should anticipate how employees could be subject to sexual harassment and take steps to prevent this from happening. What is reasonable will depend on things like the size of the employer, the nature of the workplace and the risks present in that workplace.
While many businesses may already have some measures in place to help prevent workplace sexual harassment, now is an ideal time to review and update these to ensure compliance with the new duty before October.
Policies and procedures – implement clear policies, specifically addressing sexual harassment and outlining your commitment to prevent it. Regularly review and update them, taking legal advice where needed to align with new laws. Publicise the policies to ensure staff awareness and make them widely available (and think about updating and re-circulating key policies now).
Training – Conduct regular, mandatory training for all staff, explaining what constitutes sexual harassment, expected standards of behaviour, and how to raise complaints. Train managers to identify sexual harassment and ensure that any reports are responded to swiftly, investigated thoroughly and dealt with fairly. It’s important to invest in training (and refreshers) to educate staff about this issue and their role in maintaining a harassment-free workplace.
Reporting – establish clear, accessible reporting channels for complaints, ensuring staff know how to use them and feel supported throughout the process.
Culture – make it clear that you have zero-tolerance for sexual harassment. Culture drives from the top down and needs to be embedded in your senior leadership team, with managers understanding the issues and fostering two-way communication with staff. Develop a culture valuing equity, diversity and inclusion, and arrange training on this. Think about having workplace champions to support those affected by sexual harassment.
Risk Assessments – conduct risk assessments to identify factors that might contribute to sexual harassment and determine appropriate preventive actions.
Monitoring – conduct staff surveys to understand the extent of any issues/risks of workplace sexual harassment, and to collect feedback for improving your practices.Monitor the progress of all sexual harassment complaints to ensure that: they are properly resolved; perpetrators are dealt with appropriately; complainants and witnesses aren’t victimised; and measures are implemented to minimise known risks.
What about third-party harassment?
Although the Act originally intended to introduce a new duty for employers to prevent the sexual harassment of employees by third parties (such as contractors and clients), this was ultimately scrapped, meaning that employers won’t be liable for third-party harassment.
However, interestingly, the EHRC guidance seems to adopt a different approach. It says that the new preventative duty also applies to the actions of third parties, suggesting that the EHRC could take enforcement action if employers fail to protect employees from third-party harassment. You should, therefore, remain alive to third-party harassment and consider taking steps to prevent this as well.
The upcoming changes mark a significant shift in sexual harassment laws, emphasising employer proactivity to create safer workplaces.
It remains to be seen whether the new Labour Government will make further changes. During its campaign, Labour committed to: strengthening the duty for employers to take ‘all reasonable steps to prevent sexual harassment’; introducing the duty to prevent third-party harassment; and putting more stringent measures in place. However, any changes will be subject to consultation and unlikely to come in before October; we will therefore need to watch this space!
If you need any help preparing for the upcoming changes, contact Howes Percival’s leading employment team by calling 01604 230400 or 01908 672682 or visit www.howespercival.com
Associate
Howes Percival
