Duty to Prevent Sexual Harassment Occurring in the Workplace
If you have attended any of our recent HR Forums, you will be well aware that The Worker Protection (Amendment of Equality Act 2010) Act 2023 (“the Act”) will come into force on 26 October 2024.
The Act introduces a mandatory duty on employers to take reasonable steps to prevent sexual harassment of their employees from occurring in the workplace.
The Act also provides the Employment Tribunal with the power to uplift compensation in sexual harassment claims by up to 25% where an employer has been found to have breached its duty to prevent sexual harassment from occurring.
The Equality and Human Rights Commission (“EHRC”) has historically provided guidance on sexual harassment in the workplace, however an updated version of this guidance has been released this week, to ensure that the advice is tied into and is relevant to the new mandatory duty to prevent sexual harassment.
What is the duty to prevent sexual harassment?
The ‘Sexual harassment and harassment at work: technical guidance’ (“the Guidance”) makes it clear that the preventative duty is an anticipatory duty, which means that employers must not wait until an instance of sexual harassment occurs in their workplace before taking action, they must be taking active steps to consider and anticipate situations in which incidents may occur and taking reasonable steps to prevent this from occurring at all.
How to treat third party harassment?
Whilst there is no standalone right in the Act for an employee to bring an Employment Tribunal claim against their employer for sexual harassment they suffer at the hands of a third party in the course of their employment, the Guidance makes it clear that the duty on an employer to prevent sexual harassment occurring also extends to the employer preventing third parties (such as clients, customers and suppliers) from harassing their employees. Third party harassment should be treated as seriously as harassment between colleagues. The EHRC has the power to investigate employers and impose legal sanctions on them in the event the preventative duty has not been complied with, irrespective of whether sexual harassment has actually occurred or not.
What are the reasonable steps to prevent sexual harassment in the workplace?
The Guidance is clear that sexual harassment in the workplace is not inevitable and employers can and must take action to prevent this from taking place.
The actual nature of reasonable steps will vary from employer to employer, depending on a variety of matters including size, resources and particular risk factors. What might be reasonable for one employer may not be reasonable for another. Interestingly the Guidance confirms that a step might be considered reasonable even if it would not have actually prevented an incident of sexual harassment from taking place.
Whilst reasonable steps differ from business to business, the Guidance is clear that all businesses need to risk assess matters as a starting point. It indicates that an employer who has not carried out a risk assessment, will struggle to evidence that they have complied with their duty to prevent sexual harassment.
Assessing the potential risk of sexual harassment
The risk assessment involves a brainstorming type of exercise, where the business considers its potential risk areas as follows:
- Consider the risks of sexual harassment occurring in the course of employment – you will likely need to break this down into multiple risk areas, departments, types of work, locations etc
- Consider what steps you could take to reduce those risks and prevent sexual harassment of your workers – note ‘could’ – this step can and should include all potential avenues of preventing sexual harassment
- Consider which of those steps it would be reasonable for you to take – this is where you filter out the could possibilities
- Implement those reasonable steps
The risk assessment should be repeated and documented for all areas of potential risk, for example, lone workers, night shift workers, customer facing roles, small teams, differences in management styles to name but a few.
The Guidance also sets out an 8 step guide to preventing sexual harassment at work. This includes points such as developing effective and specific sexual harassment policies, training and engaging with your staff but also using the information they share with you in a useful and beneficial way, risk assessing, consider putting in place a centralised reporting procedure to maintain records and asses trends and ongoing monitoring of the effectiveness of your reasonable steps.
The above sets out an overview of the Guidance and we do recommend that employers read the Guidance directly. It is user friendly and also includes a lot of worked examples as to what reasonable steps may or may not be in practice.
What is clear however is that no employer is exempt from the duty. Sexual harassment can be eradicated from the workplace and all employers must take prompt and ongoing action to comply with their preventative duty with a view to changing workplace cultures and behaviours.
If you need any assistance with considering your risk assessments, drafting appropriate policies or delivering training to your staff or any other employment related matters our Employment Team would be happy to assist.
Explore how our team can support your business on our website, speak with us on 01246 555 111, or contact one of the team directly below:
Amy Hallam
Head of Employment
t: 0114 349 6989
e: amy.hallam@brmlaw.co.uk
Ellie Leatherday
Associate
t: 01246 564002
e: ellie.leatherday@brmlaw.co.uk
Jade Taylor
Trainee Solicitor
t: 01246 560587
e: jade.taylor@brmlaw.co.uk
