On 26th October a new mandatory duty comes into effect in relation to sexual harassment. It will require employers to take reasonable steps to prevent sexual harassment of their employees. The new Employment Rights Bill announced last week will also, in the future, extend the duty further, with employers being required to take ALL reasonable steps to prevent sexual harassment which will include harassment by third parties (particularly relevant to sectors such as hospitality).
Below is a summary of some of the key issues for employers to consider:
- Sexual harassment is unwanted conduct of a sexual nature which has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
- Whilst there is already a defence under the Equality Act 2010 where employers have taken ‘all reasonable steps’ to prevent an act of discrimination occurring, this new duty requires positive action from employers and the Equality and Human Rights Commission (EHRC) can take enforcement action against employers who fail to comply, which can include:
- investigating an employer
- issuing a notice of unlawful action and requiring an employer to produce an action plan
- entering into a formal, binding agreement with an employer to prevent future unlawful acts
- seeking an injunction to prevent an unlawful act by an employer.
- Employment tribunals will also be able to award an uplift of up to 25% to an employee’s compensation award where an employee succeeds in a claim of sexual harassment and the tribunal finds that the employer did not comply with the new duty. The amount of the compensation uplift will reflect the extent to which the employer has not complied with the new duty.
- The EHRC has now published Technical guidance on the new duty as well as an Employer 8-step guide to summarise the detailed guidance.
- The guidance makes clear that the new duty is anticipatory and employers should not wait until a claim of sexual harassment is made before taking action: they should anticipate scenarios in which employees may be subjected to sexual harassment and take action to prevent it. Where sexual harassment has taken place, steps should be taken to prevent it happening again.
- As for harassment by third parties, the EHRC guidance confirms that the new preventative duty extends to sexual harassment by third parties meaning that the EHRC can take action against employers who do not take reasonable steps to prevent this. However, as employees can currently only bring claims against employers where they have suffered harassment by third parties in certain circumstances (for example, where this constitutes direct or indirect discrimination by the employer), the Government is seeking to extend the rights of employees as against third parties through the new Employment Rights Bill. As currently drafted, this will introduce specific protection from all forms of harassment (not just sexual harassment) by third parties which employees can enforce directly (and again requires employers to take ALL reasonable steps to prevent it).
- Employers should now:
- carry out a risk assessment to consider the risks of sexual harassment occurring (including by third parties such as customers), taking into account factors such as power imbalances, the workforce demographic, lone or out of hours working, lack of diversity in the workforce, customer facing duties, the presence of alcohol, socialising outside work and so on;
- consider what steps it could take to prevent it and which of those steps it is reasonable for it to take;
- implement those steps in an action plan which should be communicated to the workforce.
- What constitutes ‘reasonable steps’ will vary and involves consideration of many factors including the employer’s size and resources, the sector in which it operates, the risks present in the workplace (for example, a male dominated workforce with a predominantly male management might require more steps), the time, cost and potential disruption of the step weighed against the benefit, the nature of any contact with third parties and whether concerns have been made before.
- The EHRC Technical guidance and Employer 8-step guide give more details but possible steps include:
- developing an anti-harassment policy (if possible in conjunction with trade unions or worker representatives);
- training for managers and the workforce in general – specific and detailed, not tick box, with refresher training where appropriate and targeted training for most at risk areas;
- communication with the workforce about policies and how to report sexual harassment and the consequences for perpetrators;
- monitoring and taking measures to increase representation of under-represented groups who might be most at risk (e.g. female staff in a male dominated workforce);
- sending formal letters to clients and customers to advise of a non-toleration policy of sexual harassment;
- setting up anonymous reporting channels;
- staff surveys;
- creating a log to report all incidences of sexual harassment (data protection compliant);
- communication of details of support services available to those suffering sexual harassment;
- appointment of a designated lead with responsibility for implementing the action plan.
As mentioned above, the reasonableness of any steps to be taken will vary according to the employer and the specific circumstances and we are here to offer bespoke advice. What is clear is that introduction of the requirement for employers to take ‘all reasonable steps’ at some point in the next two years will make this an even more stringent requirement.
This post was updated on 24 October 2024.