The new duty to prevent sexual harassment
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When in force: 26 October 2024.
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The new legal duty: for employers to take "reasonable steps" to prevent sexual harassment
Remedies: enforcement directly from the Equality and Human Rights Commission (EHRC) and uplift of up to 25% on compensation awarded by an employment tribunal.
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Guidance: EHRC has published guidance to assist organisations on their legal obligations under the new duty.
From 26 October 2024, employers will have a legal duty to take reasonable steps to prevent sexual harassment of employees in the course of their employment. While many employers will already make clear in an anti-harassment policy that sexual harassment (and harassment related to protected characteristics, such as sex and race) will not be tolerated, this is not the same as complying with the new duty.
The new preventative duty requires an employer to conduct something akin to a health and safety risk assessment, asking itself, where is the business most at risk of sexual harassment occurring, and what steps can we take to mitigate those risks? Those familiar with managing health and safety will know that, while it is impossible to prevent an accident from happening, it is possible (and legally required) to put in place measures to minimize the risks. An employer will have failed in its duty to take reasonable steps to prevent sexual harassment if it simply does nothing.
Does the new law make employer liable for acts of third parties?
No. An employer will not be liable for the acts of third parties. However, if third parties sexually harass employees or workers, an employer will have breached its preventative duty if it failed to anticipate those risks and take reasonable steps to prevent them. Making clear to third parties that sexual harassment will not be tolerated will be a crucial first step. Employers may need to also review their terms and conditions with customers, partner organisations and other third parties who come into contact with employees, so that, should harassment occur, there is a prompt and effective way of this being deal with rather than the employer having a hands-off approach.
How do we go about conducting a risk assessment or audit?
The positive duty requires employers to identify and seek to mitigate risks of sexual harassment in the workplace, and for particular jobs bearing in mind the time, cost and potential disruption caused by taking steps. In conducting a risk assessment an organisation can identify particular sensitivities in its particular workplace, workforce, culture. Hospitality businesses might need to consider protection for workers with customer facing duties; those in the tech sector may evaluate the use and control of social media networks. More broadly, businesses should conduct an audit of their employees' working patterns, social informal networks, possible gendered power imbalances that may exist and workplace culture.
What are examples of reasonable steps?
An employer will not be expected to take every conceivable step, only steps that are reasonable in the circumstances. It will be a case of weighing the potential benefit against the difficulty of taking the step and deciding whether to implement it. Although the test is objective, the size and resources of the employer will have a bearing on reasonableness. So too will the history of any past problems with sexual harassment. If there have been repeated instances, an employer will be expected to go further than workplaces where there is no evidence of an endemic problem. Generalised examples of reasonable steps are:
- reviewing policies
- providing training in light of new duty
- conducting staff surveys to measure confidence in environment being free of sexual harassment
- reviewing processes for handling sexual harassment complaints
- putting up notices to make third parties aware that sexual harassment will not be tolerated and having in place an effective process for dealing with third-party harassment
What are the Remedies?
25% uplift: Employees and workers who bring successful sexual harassment claims against their employer may benefit from a 25% uplift to awards of compensation where the preventative duty has been breached. An employment tribunal must consider whether the duty has been breached in sexual harassment cases and may apply an uplift to the award of up to 25%.
EHRC investigation and fines: Given that awards for discrimination are not capped, and injury to feelings awards may be considerable, the uplift may well be significant. Regardless of whether individual claims are brought, The Equality and Human Rights Commission (EHRC) may also bring enforcement action against an employer, conduct investigations into workplaces where sexual harassment is rumoured to be rife, impose fines and order remedial action to be taken. The ESG and reputational issues will also be a major concern so employers cannot afford to do nothing in light of the new duty.
EHRC Guidance
The EHRC has produced technical guidance and a short form "Employer 8-step guide". The guidance provides information on how the law works, and detailed guidance on the steps that employers should take to prevent and respond to sexual harassment at work. In particular it sets suggests:
- content for an effective anti-harassment policy and engaging staff
- assessing and taking steps to reduce the risk in the workplace, including undertaking a risk assessment
- ways in which complaints of sexual harassment can be reported
- training both for staff and managers
- what to do when a harassment complaint is made
- dealing with harassment by third parties
- monitoring and evaluating your actions.
Record-Keeping
To demonstrate that a business has taken reasonable steps to comply with this new duty, and to mitigate risk of incurring an uplift if compensation for sexual harassment is awarded, it will need to demonstrate to an employment tribunal that its polices and procedures are effective. This will be assisted by keeping records of the details of complaints of sexual harassment and their outcome, the content and delivery of training, and maintenance of up-to-date policies. Equality and diversity training should not become "stale" so employers should keep records as to how it has remained current, and how often training, or refreshers take place. Similarly equal opportunities and diversity policies should be regularly reviewed to remain legally compliant, and previous versions retained.
Possible future reform
While it may seem strange to be highlighting a possible future reform to a law which has only just come into effect, it is worth noting the Government's proposals in this regard in the Employment Rights Bill. However, as these proposals are not yet law, employers should proceed on the basis of the new duty.
If you would like to discuss your training needs in this area, please contact Paul Callaghan, Sean Nesbitt or Helen Farr, or your usual contact.
