New duty to prevent sexual harassment

17th October 2024

New duty to prevent sexual harassment

The Worker Protection (Amendment of Equality Act 2010) Act 2023 (Act) comes into force on 26 October 2024, introducing a positive duty on employers to take reasonable steps to prevent sexual harassment in the workplace. Sexual harassment is already prohibited under the Equality Act 2010 and employers that take all reasonable steps to prevent harassment have a defence. On the face of it this doesn’t look like anything new, however the Act will introduce two significant changes to the current legal framework, and the Equality and Human Rights Commission (EHRC) guidance makes it clear that the new duty differs from the existing “all reasonable steps” defence.

What are the changes?

Firstly, where an employee succeeds with a claim for sexual harassment and the employer is found to have breached the duty, employment tribunals will have the power to increase any compensation awarded by up to 25%.

Secondly, the Act will give the EHRC the power to enforce the new duty, including by investigating employers; issuing an unlawful act notice to an employer that is found to have breached the Act and requiring it to prepare a plan setting out how it will remedy any ongoing breach and also prevent further breaches occurring; entering into binding agreements with employers to prevent further breaches; and seeking a court injunction stopping an employer from committing an unlawful act.

What do you as an employer need to do to ensure compliance with this new duty?

“Reasonable steps” is not defined. However, the EHRC has issued technical guidance (and a new eight-step guide for employers on preventing sexual harassment at work summarising that guidance). The guide identifies eight steps which an employer can take to prevent sexual harassment but makes it clear that this is not an exhaustive list.

The eight steps are:

  • Developing an effective anti-harassment policy.
  • Engaging with staff.
  • Carrying out risk assessments
  • Using a reporting system that allows workers to raise an issue (anonymously if they wish), and keeping confidential records of all concerns raised.
  • Training staff.
  • Handling harassment complaints immediately.
  • Dealing with third-party harassment.
  • Monitoring and evaluating actions.

The guidance provides details of factors which may be relevant to determining whether it would be reasonable for an employer to take a step to prevent sexual harassment, including (but not limited to) the size and administrative resources of the employer and the time, cost and potential disruption of taking a particular step, weighed against the benefit it could achieve; the sector and nature of the working environment; whether concerns have already been raised with an employer that sexual harassment has taken place (an employer would likely be expected to take steps to investigate and ensure it does not happen again); whether steps previously taken appear to have been effective or ineffective (if a further incident occurs after steps have been taken, this may suggest that additional/alternative steps should be considered); and that a step may be reasonable, even if it would not have prevented a particular act of sexual harassment.

The guidance advises workers that they can report concerns that their employer has breached the preventative duty directly to the EHRC. However, the guidance states that they should consider raising their concerns with their employer or trade union before doing so.

What’s clear is that carrying out risk assessments will be key to establishing that the duty has been met, as the guidance indicates that an employer that fails to do so will be unlikely to be able to comply with its duty. The purpose of a risk assessment is to identify risks, and the control measures required to minimise the risks, taking into account working practices, including policies and procedures, and the working environment. The guidance recommends that employers ensure that staff are aware of reporting mechanisms and that management know what to do if a member of staff raises a complaint of harassment. Having a properly implemented workplace policy and providing appropriate training to both staff and managers will therefore be key.

If you would like a policy on sexual harassment that reflects these changes or are interested in finding out about the training that Gotelee can provide, please contact Marie Allen either by email to marie.allen@gotelee.co.uk or phone to 01473 298133.

 

 

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