Is your company ready for 26 October 2024? The new legal duty for employers to prevent sexual harassment in the workplace is fast approaching!
As we have previously reported, from 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 will strengthen the protection that is available for employees and workers against sexual harassment. There will be a new proactive duty on employers to take ‘reasonable steps’ to prevent the sexual harassment of their staff in the course of their employment. Sexual harassment is defined as unwanted conduct of a sexual nature. If a Tribunal finds that an employer has failed to take steps to protect its staff, it may order them to pay a 25% uplift to any award of compensation for sexual harassment.
The Equality and Human Rights Commission has issued an 8-step guide to prevent sexual harassment at work and have advised that employers will have an ‘anticipatory duty’ to prevent this behaviour. This means that an employer should not wait until an incident has taken place before they act. The new legislation also gives powers to the EHRC to investigate an employer; issue an unlawful act notice to an employer who has breached the duty and require them to prepare an action plan setting out how it will remedy any continuing breach of the law and prevent future breaches; require an employer to enter into a legally binding agreement to prevent future unlaw acts; and apply to the court for an injunction to refrain an employer from committing an unlawful act.
The new legislation does not list the specific steps that an employer must take to comply with the new legislation, and different employers may seek to prevent sexual harassment in different ways based on their nature and size, the risks presented and the resources they have available. However, all employers must take action, and no employer is exempt from the sexual harassment preventative duty. There is no one size fits all solution, and each case will be assessed objectively based on its own facts.
Employers are advised to take the following measures before the end of October or as soon as possible after this:
- Targeted risk assessment
- Employers should carry out targeted risk assessments as to the likely harassment risks for staff including the risk of third-party harassment. Third parties may include contractors, customers, clients, suppliers and audience depending upon the business concerned. Employers are unlikely to meet the requirement of the preventive duty to take reasonable steps to prevent sexual harassment if they do not carry out a risk assessment.
- Policy Implementation:
- Employers should review and update their anti-harassment policies to ensure they are comprehensive and effective. This includes clear procedures for reporting harassment and measures for protecting staff from both co-worker and third-party harassment. An employer may also consider introducing a specific anti sexual harassment policy.
- Regular Training and Awareness:
- Employers must provide regular training to all staff on recognising, preventing, and reporting sexual harassment. Line managers and senior management will have an important role to play in identifying, challenging and dealing with sexual harassment and their training should give them the confidence to tackle such behaviour. All training should be documented and updated regularly.
- Communication to staff and third parties
- Employers should consider how to communicate their zero-tolerance policy of sexual harassment to staff and third parties. This could include using signage to confirm that a zero-tolerance approach is taken towards sexual harassment. It could also include asking visitors to sign and confirm their commitment to the zero-tolerance approach when attending their premises.
- Monitoring and Review:
- Employers should regularly monitor the workplace environment and review their policies and procedures to ensure they are effective in preventing sexual harassment. This could include conducting surveys or feedback sessions with staff.
- Clear reporting channels:
- Staff should be made aware of how they can report allegations of sexual harassment. These channels should be well promoted, confidential and easily accessible within the business.
- Taking Action:
- Employers must take immediate and appropriate action when a complaint of sexual harassment is made. This includes conducting a thorough investigation and taking disciplinary action where necessary. This also includes dealing with known perpetrators.
The new law aims to help employers create a safer and more respectful workplace and reduce the risk of sexual harassment and potential legal claims. A tick box exercise will not suffice so it is imperative that employers take action as soon as possible to ensure they are ready for when this new legislation takes effect.
The new law will not apply to other forms of harassment such as harassment related to age, disability religion or belief. It also does not apply to harassment related to sex, as this is different to sexual harassment, the latter being sexual in nature. For all other types of harassment, the duty for employers remains as set out in the Equality Act 2010. This is for an employer to take ‘all reasonable steps’ to prevent the harassment from happening in the first place.
We offer workplace training on sexual harassment to help employers comply with the new rules. If you would like more information on the training we offer, advice on what steps to take to prevent the sexual harassment of staff or advice on any specific issue identified above, please do not hesitate to contact a member of the team.