New Duty to Prevent Sexual Harassment in The Workplace
The Worker Protection (Amendment of Equality Act 2010) Act 2023 received royal assent on 26 October 2023 and adds an extra layer of protection for workers, from sexual harassment in the workplace. The purpose of this is to push employers to take more proactive measures in reducing workplace sexual harassment. The Act will come into force on 26 October 2024.
What is the new legal obligation?
Employers have always had the risk of being held vicariously liable for an act of harassment caused to a worker by another person. Presently, there is a legal defence for employers to harassment claims of workers if the employer can demonstrate that they took all reasonable steps to prevent the harassment complained of from taking place. This means that if employers have taken such steps, they could potentially rely on this defence, however it is not a specific legal requirement.
The new law now goes further by placing a separate legal obligation on all employers to take proactive measures to specifically prevent sexual harassment.
Sexual harassment is unwanted conduct of a sexual nature which has the purpose or effect of violating a worker’s dignity, creating an intimidating, hostile, degrading, humiliating or offensive environment for that worker.
Employers will have a legal duty to take reasonable steps to prevent sexual harassment of workers in the course of their employment. If they fail to do this, they will be legally responsible for such harassment.
Consequences of non-compliance of the new legal duty
Where workers have brought an employment tribunal claim and sexual harassment has been held to have taken place and the employer has been found to have breached the new duty, an “uplift” of up to 25% to any compensation awarded to the claimant can be added. In addition to this, the Equality and Human Rights Commission (EHRC) will also have the power to take enforcement action against an employer if an employer breaches the new duty, including the power to investigate an employer and issue an unlawful act notice about the investigation or ask the court for an injunction to restrain an employer from committing an unlawful act.
What do employers need to know and how can employers take steps to prevent the sexual harassment of workers?
What is deemed to be ‘reasonable steps’ to prevent the sexual harassment of workers will depend on the specific circumstances and certain factors.
The EHRC published a technical guide for employers in January 2020, to help employers and workers understand, amongst other things, the best practice for the effective prevention and response to harassment in the workplace. The EHRC recently closed their consultation on its draft proposed updates to this guide related to the new duty, which includes a number of steps that employers can take to prevent and tackle sexual harassment in the workplace.
Some of the key points that employers should be aware of, taken from the proposed updates to the guidance are as follows: -
The new positive legal duty for employers to prevent sexual harassment of their workers and take reasonable steps to prevent sexual harassment of workers in the course of their employment is a preventative and anticipatory duty.
Employers should be proactive and not await an incident of sexual harassment before taking action. Employers should think of the likely scenarios of when its workers may be subject to sexual harassment whilst employed and take action to prevent it and if it happens, an employer should take action to stop the sexual harassment from ever happening again.
The new duty also requires employers to take reasonable steps to prevent sexual harassment of workers by third parties, such as clients and customers.
The preventative duty only applies specifically to sexual harassment.
According to the proposed updated guidance, ‘reasonable steps’: -
will vary from employer to employer and will depend on factors including the employer’s size, the sector it operates in, the working environment and its resources; and
it is an objective test whether an employer has taken reasonable steps and will depend on the specific circumstances of each situation.
Employers should consider the risks of sexual harassment occurring during employment, what steps they could take to reduce those risks and prevent sexual harassment of their workers and which of those steps it would be reasonable to implement. Amongst other things, employers should consider whether there are any further steps they could have reasonably been expected to take, the effectiveness of the steps and the impact of the steps.
Following the consultation, the EHRC will review feedback and publish the final updated guidance. In the meantime, if they have not done so already, employers should review and update their sexual harassment policies to prepare and ensure compliance when the new law comes into effect. As the saying goes, ‘fail to prepare, prepare to fail’.
How can employers prepare for the new duty?
Some suggested steps that employers can take in preparation for the new duty coming into force in October 2024 are as follows: -
Audit of current measures and policies
Regardless of whether an employer has current measures and policies in place to tackle sexual harassment in the workplace, employers should carry out an audit on their current measures and policies to check that they are suitable in light of the new duty. Effective measures and policies will play a key role in employers being able to show that they have reasonable steps in place to deal with sexual harassment.
Risk assessment
Employers should carry out a risk assessment in respect of the risk of sexual harassment in the workplace, similar to the way they carry out risks assessments for other workplace risks. In the updated guidance, the EHRC provides that an employer should:
consider the risks of sexual harassment occurring in the course of employment
consider what steps it could take to reduce those risks and prevent sexual harassment of their workers
consider which of those steps it would be reasonable for it to take
implement those reasonable steps.
Training
It goes without saying that a key element in helping to ensure that an employer complies with the new duty is its staff. Not only can the actions or inaction of staff essentially be held to be the responsibility of the employer but ensuring that staff understand what constitutes harassment and how the employer deals with complaints about it can help to foster a healthy work environment.
Employers should conduct ongoing training for all staff on harassment, including sexual harassment, and reinforce the employer’s policy and the fact that there is zero tolerance policy in that regard. Staff should be encouraged and made to feel empowered to call out unacceptable behaviour.
Employers should also provide training to managers, HR, and others who are responsible for implementing and handling complaints of sexual harassment. Such training should cover how these individuals respond to reports or allegations, conduct investigations, and support staff, as well as how to identify and investigate warning signs.
Regular updates to the training of staff and managers alike are essential and employers should refresh and deliver this training regularly.
How we can help
At Dragon Argent, our Employment law experts have a great amount of experience in advising a wide range of businesses on their legal obligations in respect of harassment and sexual harassment in the workplace and in supporting businesses to navigate complaints and legal changes. We can provide in-house training and specific advice to employers. If you have any questions in respect of the new law or require tailored specific advice, please get in touch with a member of the Employment team.
Please note that the purpose of this article is to provide general information only. It is not provided as legal advice and should not be relied on as such. We do not accept any liability to anyone who does rely on its content.
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