October 2, 2024
Categories Employment Law Updates
From 26 October 2024, employers will have a new legal duty to prevent sexual harassment and so they need to take active steps to comply with this duty.
This new duty has been introduced by the Worker Protection (Amendment of Equality Act 2010) 2023. The background to this legislation is a history of under-reporting of sexual harassment complaints by employees, and at the same time employers failing to take sufficient preventative measures or properly to address reported incidents.
For example, research published by the TUC in May 2023 showed that three in five women had experienced bullying and harassment or sexual harassment in the workplace, and 43% of women had experienced at least three incidents of sexual harassment at work. However, only 30% of women who had experienced sexual harassment at work reported this to their employer. The main reasons for not doing so were that they felt they would not be believed or taken seriously, they thought reporting would impact negatively on their relationships at work, or they though it would harm their career prospects.
The duty to prevent sexual harassment
The new duty requires all employers to take reasonable steps to prevent the sexual harassment of their employees in the course of their employment. Sexual harassment means unwanted conduct of a sexual nature, which has the purpose or effect of violating dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.
The EHRC guidance describes the duty as an ‘anticipatory duty’ – anticipating scenarios where employees may be subject to sexual harassment and taking action to prevent this harassment taking place. It is deliberately framed as a positive and proactive duty designed to transform workplace cultures.
The wording of the new duty appears to be wide enough to include harassment committed by customers or other third parties, and not only harassment perpetrated by another member of staff. This wide scope to the duty is also endorsed by the Equalities and Human Rights Commission (EHRC) in its updated technical guidance.
Sexual harassment of employees ‘in the course of their employment’ does not only cover incidents on work premises. It may also include conduct at training events or work-related social events, by phone or text, in virtual meetings or on social media.
What are ‘reasonable steps’?
What steps will be reasonable in each case will vary according to the nature and size of the employer’s business, the sector it operates in, the working environment, the business’s resources, and the extent to which employees have contact with third parties. No employer will be exempt from the duty to take reasonable steps.
These however are the actions which we would recommend that you take in order to meet your legal duty, and so as to put your commitment to a zero tolerance of sexual harassment into practice:
- Assess the risks for sexual harassment occurring in the course of employment across your business, identifying the risk factors and control measures currently in place.
- Consult with your staff to inform your understanding about the prevalence or risks of sexual harassment, and to gather their suggestions about the measures that the business can take to prevent it. This consultation could be through trade unions or a staff forum.
- Introduce a clear and effective staff policy which specifically deals with sexual harassment.
- Set up an effective system for reporting any incidents, including the option to raise concerns anonymously. Keep confidential records of all concerns raised, whether formally or informally.
- Provide mandatory training for all your staff about sexual harassment, expected standards of behaviour, and how to raise any complaints. Where relevant, this should also cover how to address harassment from customers.
- Provide additional training for your managers on how to handle complaints of sexual harassment.
- Put in place effective measures to minimise the risk of sexual harassment by customers, suppliers and other third parties – for example notices on your premises, or suitable wording in your supplier contracts.
- Act immediately to investigate and resolve any complaints of sexual harassment, respecting confidentiality of all parties. Support your employees who report sexual harassment and ensure that they are not victimised in any way.
- Only use confidentiality agreements where necessary and appropriate, so that they do not undermine your efforts to promote a culture of transparency.
- Regularly monitor and evaluate the effectiveness of the steps that you have taken, for example with staff surveys or “lessons learned” sessions. Also regularly review your policies, procedures and training.
Enforcement of the legal duty
The new duty to prevent sexual harassment can be enforced in two ways.
Firstly, the EHRC will have powers to take enforcement action, although in practice this is more likely to affect larger employers. For example, in 2023 the EHRC took action against McDonald’s due to concerns over its handling of sexual harassment complaints made by staff in its UK restaurants. This resulting in a binding agreement compelling McDonald’s to communicate a zero tolerance approach to sexual harassment, conduct a workplace survey, enhance its policies and procedures, and deliver staff training.
Secondly, and of wider significance, Employment Tribunals will have the power increase compensation for harassment where an employer has breached its duty to take reasonable steps. If the Tribunal upholds a claim of harassment which involved sexual harassment to any extent, it will be required to consider whether and to what extent there has been a contravention of the duty to take reasonable steps. If it is satisfied that the employer has contravened this duty, it may order an uplift of the compensation awarded to the complainant of up to 25%.
In the longer term, we can expect to see legislation which reintroduces legal liability for employers where their employees are harassed by third parties and brings in protection for volunteers and unpaid interns, and possibly the new reasonable steps duty will be extended to cover all other forms of harassment which are prohibited under the Equality Act.
How we can help
We can help your business take steps to prepare for the new duty to prevent sexual harassment, including the preparation of suitable policies and contract clauses, and the provision of staff training.
We can also advise and assist you in relation to the investigation of reported incidents of sexual harassment, or if a claim of sexual harassment is brought against your business.
Contact Senior Associate, Patrick Glencross, on 01227 763939 for further information.
Please note: This article is for general information only and does not constitute legal or professional advice.
