A new duty on employers to take reasonable steps to prevent sexual harassment is imminent. What should businesses do to prepare?
From 26 October 2024, employers will have a new duty to take reasonable steps to prevent sexual harassment of their workers. This new protective duty is contained in the Employment Protection (Equality Act Amendment 2010) Act 2023.
The protective duty only relates to sexual harassment and not the other “protected characteristics” listed in the Equality Act 2010. It is in addition to the existing protections from discrimination, harassment and victimization contained in this law.
On 26 September 2024, the Equality and Human Rights Commission (EHRC) published a comprehensive update Technical guidance For employers and The 8-Step Employer’s Guide: Preventing Sexual Harassment at Work Which is 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, humiliating, degrading or offensive environment for the individual.
Examples include unwanted physical contact, sexual jokes or comments, sexual innuendos, sending sexually explicit emails/texts, or showing images containing sexual scenes.
What is a preventive duty?
The guidance describes it as “a positive and proactive duty designed to transform workplace cultures.”
- Employers should anticipate scenarios in which their workers may experience sexual harassment during their work and take action to prevent this.
- If sexual harassment occurs, employers must take action to prevent it from happening again.
- The protective 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 claim independently of the breach of the protective duty itself, but if a breach occurs, this can affect the amount of compensation, which will be discussed below.
Reasonable steps
The guidance makes clear that there is no specific minimum. What is reasonable will vary depending on the employer, and relevant factors include:
- The size, resources and sector of the employer
- Risks in this workplace
- Communication with third parties
- The potential impact of taking a particular step and whether an alternative step could be more effective
- The time, cost, and potential disruption of a given step outweigh the benefit
Factors to consider in risk assessment
It is worth noting that the Guidance states that employers are unlikely to be able to meet the safeguarding duty if they do not carry out a risk assessment.
It is not a fixed duty, and employers should regularly review their preventative steps.
The guidance notes various risk factors that may increase the risk of sexual harassment in the workplace, including:
- Male-dominated workforce
- A workplace culture that allows for rude/sexual “banter.”
- Power imbalance between the sexes
- Working alone or isolated
- Workplaces that allow alcohol consumption
- Casual workforce
- There are no policies or procedures to deal with sexual harassment
Consequences of breach of the new duty
If a worker is successful in claiming sexual harassment and compensation is awarded by an employment tribunal, the tribunal must consider whether the employer has breached the protective duty. If so, the court can order an increase in compensation by up to 25%. Compensation for sexual harassment is unlimited and includes loss of past and future income and injury to feelings; Therefore the compensation increase could be significant. Note that the EHRC can also take enforcement action against the employer.
With only a few weeks before safeguarding duty comes into effect, what can employers do to prepare?
- Conduct a risk assessment
Think about the risks of sexual harassment, steps to mitigate those risks, and what reasonable steps to take.
- Educate workers about sexual harassment and what actions amount to such behavior.
Refer to the Equality Act 2010 definition and provide examples of what would constitute unwanted sexual behaviour.
- Promote an inclusive culture in the workplace
Implement a zero-tolerance approach to sexual harassment, which will help instill a respectful and inclusive environment. Management and senior leaders have a critical role to play.
- Implement a clear anti-harassment policy
Encourage employees to report sexual harassment and establish effective complaints procedures. Explain that harassment can lead to disciplinary action. Publish the policy, ensure it is easily accessible, and review it regularly. Providing support to complainants.
- Providing training to workers and managers
Tailor this to your specific workplace and target audience. When third-party harassment poses a risk, training should address this. Keep records of who has received training and, most importantly, update them regularly.
Be proactive and look for warning signs in the workplace, such as illness, absence, performance decline, behavior change, or resignation.