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A new duty on employers to take reasonable steps to prevent sexual harassment is upon us. What should companies do to prepare?
From October 26, 2024, employers will have a new duty to take reasonable steps to prevent sexual harassment of their employees. This new preventive duty is set out in the Worker Protection (Amendment of Equality Act 2010) Act 2023.
The preventive duty only covers sexual harassment and not other “protected characteristics” set out in the Equality Act 2010. It is in addition to the current protections against discrimination, harassment and victimization set out in that Act.
On September 26, 2024, the Commission for Equality and Human Rights (EHRC) published an extensive update Technical guidance for employers and an employer’s guide in 8 steps: preventing sexual harassment at work that are worth watching.
What is sexual harassment?
The Equality Act 2010 defines this as unwelcome conduct of a sexual nature which has the purpose or effect of either violating the dignity of an individual or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
Examples of this include unwanted physical contact, sexual jokes or comments, sexual advances, sending sexually explicit emails/texts and displaying sexually explicit images.
What is the preventive duty?
The Guidance describes it as “a positive and proactive duty, designed to transform workplace culture”.
- Employers should anticipate scenarios in which their employees may experience sexual harassment on the job and take action to prevent it.
- If sexual harassment occurs, employers must take action to prevent it from happening again.
- The preventive duty applies to third party harassment (contrary to the Equality Act 2010) of, for example, clients, customers, service users or members of the public.
- An individual cannot make a stand-alone claim for breach of the preventive duty itself, but if there is a breach it may affect the amount of damages, which is discussed below.
Reasonable steps
The Guidelines make it clear that there is no prescribed minimum. What is reasonable will vary depending on the employer, and relevant factors include:
- Size, resources and sector of the employer
- Risks in that workplace
- Contacts 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 outweighed the benefits
Factors to consider in a risk assessment
Significantly, the Guidance states that employers are unlikely to be able to meet the preventive duty if they do not carry out a risk assessment.
It is not a static obligation and employers should regularly review their preventive measures.
The Guidance refers to several risk factors that may increase the risk of sexual harassment in the workplace, including:
- A male-dominated workforce
- A workplace culture that allows rude/sexist ‘banter’
- Power inequality between men and women
- Working lonely or isolated
- Workplaces where alcohol consumption is permitted
- A loose workforce
- No policies or procedures exist to address sexual harassment
Consequences for violation of the new duty
If an employee successfully claims sexual harassment and damages are awarded by the labor court, the labor court must assess whether the employer has breached the preventive duty. If that is the case, the Tribunal can order damages of up to 25%. Compensation for sexual harassment is unlimited and includes past and future loss of income and damage to feelings; consequently, the increase in compensation could be significant. Please note that the EHRC can also take enforcement action against the employer.
Since there are only a few weeks left before the preventive duty comes into effect, what can employers do to prepare?
- Conduct a risk analysis
Consider the risks of sexual harassment, the steps that can reduce those risks, and what steps can be reasonably implemented.
- Educate employees about sexual harassment and what actions constitute such behavior.
Refer to the definition in the Equality Act 2010 and give 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 create a respectful and inclusive environment. Management and senior leaders play a crucial role.
- 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. Make the policy public and ensure it is easily accessible and regularly reviewed. Provide support to complainants.
- Provide training to employees and managers
Adjust this for the specific workplace and target group. Where harassment by third parties is a risk, training should address this. Keep track of who has completed training and, crucially, refresh it regularly.
Be proactive and pay attention to warning signs in the workplace, such as illness, absenteeism, decline in performance, behavior change or dismissal.