A new duty to prevent sexual harassment of employees is expected to come into force around 26th October 2024. Whilst it may sound like a way off, it will be important for businesses to start preparing early so that they are ready in time.
Here are three things your business needs to know:
- What is the new duty?
- Is there guidance on ‘reasonable steps’?
- Getting ready
What is the new duty?
Under current law, sexual harassment is prohibited. Employers are liable for harassment committed by their workers in the course of employment, however, they will have a defence against claims if they can show that they took “all reasonable steps” to prevent the harassment. The new duty goes further and creates a positive legal obligation for employers to try to stop sexual harassment from happening in the first place – by taking reasonable steps to prevent it.
When in force, it is important to be aware that if an employee succeeds in a claim for sexual harassment and is awarded compensation, an employment tribunal must consider whether the employer has complied with the preventative duty. If it considers the preventative duty has been breached, an employment tribunal can increase compensation by up to 25%.
Furthermore, the Equality and Human Rights Commission (EHRC) also has the power to enforce the duty and can conduct its own investigations.
Is there guidance on ‘reasonable steps’?
The EHRC launched a consultation on its proposed new guidance on this area which closed on 6th August 2024.
Rather than wait for finalised guidance (expected in September) which may leave you little time to prepare, businesses should start thinking about the new duty now and consider taking steps.
As explained in the proposed guidance, what is reasonable will vary from employer to employer, depending on matters such as the risk factors which need to be addressed, the size and nature of the organisation, the sector the organisation operates in, the working environment and the resources available. Whether or not an employer has taken reasonable steps is an objective test and will depend on the facts and circumstances of each situation.
Bear in mind that in addition to the prevention of ‘worker on worker’ sexual harassment, the preventative duty includes a duty to prevent sexual harassment by third parties (with the latter being enforced by the EHRC using their powers).
Getting ready
In general terms, as recommended in the draft code, employers should:
- Consider the risks of sexual harassment occurring in the course of employment
- Consider what steps they could take to reduce those risks and prevent sexual harassment of their workers
- Consider which of those steps it would be reasonable to take
- Implement those reasonable steps
Getting started
A sensible starting point will usually be to take steps to identify and understand the potential for sexual harassment to occur in connection with your business as it will help to inform your action plan. Every business is different and there is no ‘one size fits all,’ but you might, for example, want to think about matters such as:
- Where and how employees work (e.g single site, multi-site, third party premises, remotely, lone working, use of online platforms e.g Teams, level of direct supervision)
- The risk of employees coming into contact with third parties in different situations, the risk of sexual harassment occurring in those situations
- Work related events (e.g work Christmas parties, the availability of alcohol)
- Whether there have been previous allegations of sexual harassment in the business, what was learned, what preventative action was taken, could more reasonably be done now
- Workplace culture (including communications about and business stance regarding sexual harassment, promoting the right behaviours, workplace ‘banter’)
- Will policies, procedures and practices need updating (likely in many cases, we will provide more information on harassment policies in due course), for example do you include anti-harassment policies / training as part of your onboarding process for new hires?
- Training (for example, what training have employees and managers had in this area, have all employees and managers had it, was it effective, what evidence do you have of the training, when was it last done and how regularly is refresher training given) for many businesses, updated training is likely to be needed before the new duty comes into force
- Do you have processes in place for monitoring and evaluating the effectiveness of training, policies and risks?
- Do you have clear avenues and channels for people to raise concerns about sexual harassment, and would anyone who raises concerns feel that they are being supported, taken seriously and protected from reprisals? Do you have reason to believe sexual harassment may be going under-reported in your business? You may find it useful to carry out an anonymous staff survey for example, to help inform your assessment of risk / barriers to reporting sexual harassment in your business
We will be providing further legal updates regarding the new duty to prevent sexual harassment in due course, in the meantime if you need assistance with a HR matter please don’t hesitate to get in touch.