A new duty on employers to take reasonable steps to prevent sexual harassment is imminent. What do businesses need to do to prepare?
From 26 October 2024, employers will be under a new duty to take reasonable steps to prevent sexual harassment of their workers. This new preventative duty is contained in the Worker Protection (Amendment of Equality Act 2010) Act 2023.
The preventative duty relates only to sexual harassment and not other “protected characteristics” included in the Equality Act 2010. It is in addition to the current protection from discrimination, harassment and victimisation contained in that Act.
On 26 September 2024, the Equality and Human Rights Commission (EHRC) published comprehensive updated Technical Guidance for employers and an Employer 8-step guide: Preventing sexual harassment at work which are well-worth looking at.
What is sexual harassment?
The Equality Act 2010 defines this as unwanted conduct of a sexual nature which has the purpose or effect of either violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
Examples include unwelcome physical contact, sexual jokes or comments, sexual advances, sending sexually explicit emails/texts and displaying sexually graphic images.
What is the preventative duty?
The Guidance describes it as “a positive and proactive duty designed to transform workplace cultures”.
- Employers should anticipate scenarios when their workers may be subject to sexual harassment in the course of their employment and take action to prevent it.
- If sexual harassment has taken place, employers should take action to stop it from happening again.
- The preventative duty applies to third-party harassment (unlike the Equality Act 2010) from, for example, clients, customers, service users, or members of the public.
- An individual cannot bring a standalone claim for breach of the preventative duty itself, but where there has been a breach, this can impact the amount of compensation, which is considered below.
Reasonable steps
The Guidance makes it clear that there is no prescribed minimum. What is reasonable will vary depending on the employer, and relevant factors include:
- Employer’s size, resources and sector
- Risks in that workplace
- Contact with third parties
- The likely effect of taking a particular step and whether an alternative step could be more effective
- Time, cost and potential disruption of a particular step weighed against the benefit
Factors to consider in a risk assessment
Significantly, the Guidance states that employers are unlikely to be able to meet the preventative duty if they do not carry out a risk assessment.
It is not a static duty, and employers must review their preventative steps regularly.
The Guidance refers to various risk factors that may increase the risk of sexual harassment in the workplace, and these include:
- A male-dominated workforce
- A workplace culture that permits crude/sexist “banter”
- Gendered-power imbalances
- Lone or isolated working
- Workplaces that permit alcohol consumption
- A casual workforce
- There are no policies or procedures to deal with sexual harassment
Consequences for breach of the new duty
If a worker successfully claims sexual harassment and compensation is awarded by the Employment Tribunal, the Tribunal must consider whether the employer has breached the preventative duty. If they have, the Tribunal can order a compensation uplift of up to 25%. Compensation for sexual harassment is unlimited and includes past and future loss of earnings and injury to feelings; consequently, the compensation uplift could be considerable. Note that the EHRC can also take enforcement action against the employer.
With only a few weeks before the preventative duty takes effect, what can employers do to prepare?
- Carry out a risk assessment
Consider the risks of sexual harassment, the steps that would mitigate those risks and which steps are reasonable to implement.
- Educate workers about sexual harassment and what actions amount to such conduct.
Refer to the Equality Act 2010 definition and provide examples of what would constitute unwanted sexual conduct.
- Foster an inclusive culture in the workplace
Implement a zero-tolerance approach to sexual harassment, which will help instil a respectful and inclusive environment. Management and senior leaders have a critical role to play.
- Implement a clear anti-harassment policy
Encourage staff to report sexual harassment and establish an effective complaints procedure. Make it clear that harassment can lead to disciplinary action. Publicise the policy and ensure that it is easily accessible and reviewed regularly. Provide support for complainants.
- Provide training to workers and managers
Tailor this for the specific workplace and target audience. Where third-party harassment is a risk, the training should address this. Keep records of who has received training, and crucially, refresh it regularly.
Be proactive and look for warning signs in the workplace, such as sickness, absence, a dip in performance, behavioural change or resignations.