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New Duty to Prevent Sexual Harassment
The Equality Act 2010 requires that in circumstances where an employer is defending a sexual harassment claim (i.e. that an employee has been sexually harassed in the course of their employment), it is a defence for the employer to show that it took all reasonable steps to prevent the harassment. The law is this area is about to become more onerous for employers.
On 26 October 2024 a new mandatory duty will be introduced for employers to take all reasonable steps to prevent the sexual harassment of their employers in the course of their employment (this is known as the “preventative duty”). The Equality and Human Rights Commission (EHRC) will be able to enforce the new duty and Employment Tribunals will be able to increase discrimination compensation awards to employees by up to 25% where there has been a breach of the duty.
- The preventative duty will be anticipatory and ongoing so employers need to take steps to prevent sexual harassment taking place and further measures to prevent it happening again if it discovers it has taken place.
- The preventative duty applies only to sexual harassment, not harassment related to protected characteristics (the law around this remains the same).
- What is considered “all reasonable steps” will vary from employer to employer depending on factors such as size, resource, sector, working environment, work place risks, any third parties who might come into contact with employees etc. There is no particular criteria or standard that an employer must meet.
- Whether all reasonable steps have been taken by an employer will be an objective test depending on the facts and circumstances of each situation.
The EHRC will shortly be publishing new technical guidance on the duty to take all reasonable steps to prevent sexual harassment in the workplace. Homepage | EHRC (equalityhumanrights.com)
The following may amount to reasonable steps depending on the particular circumstances of the employer:
Anti Sexual Harassment Policy
Having a clear anti-harassment policy dealing specifically with sexual harassment, which applies to all staff and sets out what conduct is unacceptable, the employer’s zero tolerance to such conduct, the reporting process and the procedure that will be followed if a report is made, as well as the support available to victims of harassment and those who report it. Many employers will have a general Anti-bullying and Harassment Policy, which will cover sexual harassment. However, we would recommend that you put in place a stand alone Anti Sexual Harassment Policy to (a) make it clearer to employees how and when to report instances of sexual harassment (as sexual harassment reporting in the workplace is low despite it being an issue) and b) ensure you are complying with regulations to take reasonable steps to prevent sexual harassment at all stages. Having a separate, clear policy is a worthwhile first step toward showing that you are doing everything you can to prevent harassment. We have attached a template Anti Sexual Harassment Policy here that you can use as a template.
Staff training
Provide mandatory training for all staff about conduct that amounts to harassment, the standards of behaviour expected, how to raise a complaint and additional training for managers about how to manage a sexual harassment complaint.
Reporting
Encourage the reporting of sexual harassment by having effective reporting mechanisms, which provide different ways of making a complaint and a clear process to follow.
Zero tolerance
Adopt a zero tolerance approach to sexual harassment in your workplace culture, supported by senior management, making it clear that conduct amounting to sexual harassment will not be tolerated.
Risk assessments
Carry out risk assessments and conduct staff surveys to ascertain the extent of the risk/problem, not just internally but also in relation to third parties who have contact with staff.
Consultation
If your workforce is unionised, consult with the union on appropriate measures the employer could take to prevent harassment and on the content of the Anti Sexual Harassment policy. If there is no union, consult with work place representatives.
Workplace champions
Appoint work place champions from within the staff to provide support and advice to those who experience or witness sexual harassment.
Third parties
Take effective measures to help prevent the risk of sexual harassment of staff by third parties (e.g. customers, consultants).
Monitor complaints and outcomes
All complaints should be monitored to ensure they are properly investigated and resolved and appropriate steps taken, with areas of risk identified and measures put in place to minimise the risk. The progress of employees who make complaints should also be monitored to ensure they are not victimised for doing so.
