It has been nearly a year since the duty to prevent sexual harassment came into force, requiring businesses to take reasonable steps to prevent sexual harassment of their workers. Most businesses put measures in place to comply with the law, and for many, their efforts will have had the necessary effect. But it’s important for businesses not to rest on their laurels as the duty is an ongoing one and it can be easy to become complacent, especially as time goes by.
With this in mind, here’s five things to stay alert to when it comes to the duty to prevent sexual harassment:
- What is sexual harassment?
- What is the preventative duty?
- The preventative duty is an ongoing one
- What are reasonable steps?
- What are the consequences of non-compliance with the duty?
What is sexual harassment?
In outline, sexual harassment is unwanted conduct of a sexual nature that has the purpose or effect of causing a hostile, intimidating, humiliating, degrading or offensive environment.
In deciding whether the conduct had the ‘prohibited effect’, a tribunal must take into account the perception of the victim, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.
As you are likely already aware, sexual harassment can take a variety of forms such as:
- Sexual comments or jokes
- Propositions and sexual advances
- Suggestive looks or leering
- Intrusive questions about a person’s private or sex life
If an employee sexually harasses another, the business may be vicariously liable unless it can show it has taken ‘all reasonable steps’ to prevent the employee from acting in a harassing way. This is known as the ‘reasonable steps’ defence – this is separate and in addition to, the sexual harassment prevention duty.
What is the preventative duty?
In brief, the preventative duty is designed to improve workplace cultures by requiring employers to anticipate how sexual harassment might happen in their workplace and take proactive reasonable steps to prevent it happening.
What is reasonable will vary from business to business, the law does not list specific steps an employer must take. Different employers may prevent sexual harassment in different ways, but all employers must take action and no employer is exempt.
The preventative duty is an ongoing one
It’s important to bear in mind that the duty to prevent sexual harassment is an ongoing one. Even if you have not had a complaint about sexual harassment in your business it will still be important to monitor the situation and keep your actions under review to identify whether any further steps may be required. For example, if there have been changes in the workplace / workforce it may mean that there are further steps it would now be reasonable for your business to take.
What are reasonable steps?
Whether or not an employer has taken reasonable steps is an objective test and will depend on the facts and circumstances of each situation.
As you may remember, the Equality and Human Rights Commission (EHRC) has issued technical guidance on sexual harassment and harassment at work and an eight-step guide to preventing sexual harassment. The latter sets out a non-exhaustive list of eight practical steps an employer can take to prevent and deal with sexual harassment in the workplace covering the following areas:
- Developing an effective anti-harassment policy
- Engaging staff
- Assessing and taking steps to reduce risk in the workplace
- Reporting
- Training
- What to do when a harassment complaint is made
- Dealing with harassment by third parties
- Monitoring and evaluating actions
If it has been a while since you last considered the steps your business has taken to prevent sexual harassment you may wish to use the anniversary of its implementation as a trigger for review.
What are the consequences of non-compliance with the duty?
Whilst there is no ‘standalone’ employment tribunal claim if an employer fails to comply with the preventative duty, it can still prove to be a costly mistake. If an employee succeeds with an employment tribunal claim for sexual harassment – and the employer is found to have breached its duty to take reasonable steps to avoid the sexual harassment – the tribunal will be able to uplift compensation for harassment by up to 25%. As there is no limit on the amount an employment tribunal can award for sexual harassment most businesses will wish to avoid this mis-step.
The EHRC also has the power to enforce the duty and can conduct its own investigations.
If an employee in your business complains about sexual harassment or you have another HR issue you are concerned about, please get in touch for advice on the facts of your case. Remember we are here to help.