Following on from our last HRLaw article on the duty to prevent sexual harassment coming into force on 26th October, we are now able to update you on the latest details from the Equality and Human Rights Commission as to how employers should comply with the duty.
New duty to prevent sexual harassment: what are the key points?
A bespoke employer risk assessment is essential. The updated guidance itself notes “An employer is unlikely to be able to comply with the preventative duty unless they carry out a risk assessment.”
When deciding if a step is “reasonable” to prevent sexual harassment, the relevant factors include but are not limited to:
the size and resources of the employer;
the nature of the working environment;
the sector the employer operates in;
the risks present in that workplace;
the nature of any contact with third parties, for example, type of third party, frequency, environment;
the likely effect of taking a particular step and whether an alternative step could be more effective;
the time, cost and potential disruption of taking a particular step, weighed against the benefit it could achieve;
whether concerns have been raised with an employer that sexual harassment has taken place (it would likely be reasonable for the employer to take steps to investigate and ensure it does not happen again);
compliance with any relevant regulatory standards (for example, standards set by the Financial Conduct Authority or General Medical Council);
whether steps taken appear to have been effective or ineffective, for example, if a further incident of sexual harassment occurs after steps have taken, this may indicate that additional and / or alternative action should be considered.
A “zero-tolerance approach” means recognising that no worker should have to experience sexual harassment at work, taking all concerns raised about sexual harassment seriously and acting promptly to take appropriate action.
The tribunal’s power to order an uplift of up to 25% for a breach of the preventative duty applies to all discrimination compensation awarded to a claimant, not just the compensation awarded for sexual harassment, as was previously stated in the draft wording attached to the consultation.
New duty to prevent sexual harassment: 8-step employer guide
Further, the 8-step employer guide, in summary, advises employers to take these key steps:
Develop an effective policy;
Ensure staff engagement;
Carry out a risk assessment;
Use a reporting system;
Conduct effective training;
Set out a clear complaint handling process;
Ensure effective processes to deal with (and prevent) third party harassment;
Monitor and evaluate effectiveness.
The shocking and damning allegations that appear to be coming to light in relation to the luxury goods store Harrods, once again remind us of the unequivocal importance of this legislation and the steps the employer must take to prevent sexual harassment.
We are happy to assist your organisation in taking the relevant proactive steps; please contact the employment team.
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