Member Article

From 26 October 2024, employers will be required to take reasonable steps to prevent sexual harassment in the workplace. Employers must ensure they understand the parameters of this new duty and have implemented the measures needed to comply with it.

What the Act says

The Act requires employers to take reasonable steps to prevent sexual harassment of their workers in the course of their employment. Under the Act, sexual harassment remains as defined in the Equality Act 2010: unwanted conduct of a sexual nature that violates the victim’s dignity or creates for them an intimidating, hostile, degrading, humiliating or offensive environment.

Where an employer fails to discharge its preventative duty, it risks being investigated by the EHRC which can take enforcement action. Although a failure to satisfy the duty will not in itself give rise to a stand-alone claim in the employment tribunal, the failure can be considered by the tribunal when deciding the amount of compensation to award in a successful discrimination claim, with the tribunal having the ability to uplift the award by up to a further 25%. The consequences of not complying with this new duty are therefore significant.

What does this mean for employers?

It is critical that employers appreciate that the duty under the Act is a preventative one. Consequently, to meet it, employers must be proactive and not wait for an incident of sexual harassment to take place before they act. As such, the first task is for an employer to carry out a risk assessment to identify where sexual harassment is most likely to occur and by whom, and then consider what steps it is reasonable for them to put in place in order to reduce the probability of this happening.

Key to compliance is therefore what amounts to reasonable steps, taking into account the size and resources of the employer and the particular industry in which they operate. The EHRC has updated its technical guidance providing examples of what would be reasonable in different scenarios to help employers navigate this requirement. In addition, the EHRC has published an 8-step plan to illustrate the types of steps that employers can take:

1. Develop an effective anti-sexual harassment policy, clearly setting out what conduct is and is not acceptable, how staff can report inappropriate conduct and what support is available to staff who feel they have been sexually harassed. Ensure that the policy is clearly communicated to all staff;
2. Engage staff and any recognised union and worker representatives to better understand where and when sexual harassment is likely to occur;
3. Assess and take steps to reduce risk of sexual harassment in the workplace, by both colleagues and by third parties. Make sure third parties are informed of the organisation’s approach;
4. Establish and maintain an effective reporting system that allows workers to raise issues anonymously or in name and take steps to increase the confidence of workers to come forward and report inappropriate behaviour;
5. Provide mandatory training for workers on what amounts to sexual harassment and what standards of behaviour are expected, regularly reviewing the effectiveness of that training and offering refresher sessions at regular intervals. In addition, provide training to managers on how to handle complaints of sexual harassment;
6. Ensure the organisation acts appropriately if a sexual harassment complaint is made;
7. Establish a policy that specifically addresses sexual harassment perpetrated by third parties, ensuring all workers know how this is to be dealt with; and
8. Regularly monitor and evaluate measures and actions taken, assessing effectiveness, seeking feedback from workers and updating as appropriate.

Changing workplace culture

Whilst these steps represent a good starting point for employers, for many organisations, preventing and rooting out behaviour as pervasive as sexual harassment will require wholesale change to workplace culture. As founder of The Consent Collective Dr Nina Burrowes writes:

“Policies, procedures and reporting tools do not cause sexual harassment and as such, they will be weak tools when used to prevent [it] … Effective prevention efforts need to focus on workplace culture, empowering everyone in an organisation to have the right knowledge and skills to step in when they witness potential harassment”.

As ever, behavioural change on this scale must come from the top. Employers demonstrating this level of commitment will not only ensure compliance with the law, minimising the risks associated with enforcement and discrimination claims, but also demonstrate to their workers, and to their customer base and suppliers, a meaningful and unswerving opposition to unacceptable behaviour. To quote Dr Burrowes:

“This leads to everything that a sense of safety brings: connection, collaboration and creativity. This can become the story behind your retention, productivity and organisational resilience”.

Further developments

This is not an area employers can ignore. Indeed, the government has recently proposed plans to extend this duty to prevent sexual harassment. It is intended that employers will be required to take ‘all’ reasonable steps to prevent sexual harassment in the workplace. In addition, it is proposed that employers will be made liable if a third party, such as a customer or supplier, harasses an employee in the course of their employment and the employer failed to take all reasonable steps to prevent that harassment. All types of harassment related to a protected characteristic would be covered by this, not just sexual harassment – see our article Major Employment Law Changes in the Employment Rights Bill 2024 (shoosmiths.com) for more information on this. It should be noted that these additional proposals remain subject to statutory approval and if ratified are currently predicted to come into force in autumn 2026.

 

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