From 26 October 2024 a new duty will be placed on employers to take “reasonable steps” to prevent sexual harassment of employees in the course of their employment. This new duty has been introduced by The Worker Protection (Amendment of Equality Act 2010) Act 2023.
Compensation payable to a claiming employee may be increased by up to 25% by an Employment Tribunal for a failure to take such reasonable steps.
How can employers ensure they don’t fall foul of the new requirements?
1. What are “reasonable steps”?
The positive duty to take proactive reasonable steps will not be satisfied by completing a “one-size fits all” checklist of policies, training and other standard steps. Factors such as the resources available to the employer, its size, sector and working environment are to be considered when assessing whether an employer has complied.
The particular facts and circumstances of an incident will also form part of the assessment.
2. Where to start ahead of October?
The employer’s duty is anticipatory, meaning action should be taken ahead of an incident arising. Therefore, a bespoke risk assessment applicable to the organisation, akin to the analysis carried out when considering health and safety risks, will assist employers greatly when establishing which action is required.
Helpful initial steps:
- Collaboration between senior managers and HR to document where staff might be exposed to sexual harassment occurring in the course of employment. Examples of risk could include: colleagues attending social events (and other work events where alcohol may be consumed), power imbalances, one to one interactions with customers, clients or other third parties.
- Consider previous incidents or reported concerns (if any).
- Speak to line managers and if applicable, employee representatives to obtain their views on key risk areas.
- Create a report setting out which steps could be taken to reduce the risks identified, including:
- Drafting clear internal policy wording on dealing with sexual harassment, including: a clear definition of harassment and sexual harassment that emphasises the importance of impact not intention, encouraging incident reporting, setting out the complaint handling process.
- Creating a mandatory training programme explaining the policy and new duty to all staff. Consider which format will be most effective and why.
- Drafting a communications protocol to confirm how third parties will be made aware of the company’s stance and policy when visiting its premises or entering into contracts to provide services.
- Consulting with managers and if applicable, employee representatives, about the draft policy documents and training initiative, their proposed effectiveness and staff engagement.
- Timetabling the policy and training delivery. Considering a subsequent schedule for regular review. Ensure ad hoc updates to policies and training are made if new risks are identified and/or following an incident taking place.
3. What next?
The final version of the updated Equality and Human Rights Commission technical guidance on harassment (first issued in 2020) is due to be published imminently. Once available, the preparatory steps you have taken to date can be cross checked against the technical guidance to ensure compliance.
You may also wish to provide line managers with a copy of the updated EHRC technical guidance which:
- draws their attention to the new section outlining the duty on employers to prevent sexual harassment at work; and
- requires recipients to provide a positive email response confirming they have read and acknowledge the new guidance section.
Finally, take action; implement the reasonable steps identified in the risk assessment to prevent sexual harassment. Be sure to document all of the steps taken, and for steps considered but not taken, the reasons why.
Authors
Follow us online
