The new duty to prevent sexual harassment and what it means for employers
The Women and Equalities Select Committee published a report in 2018 which highlighted the extent to which sexual harassment in the workplace remains persistent. As a result, the government is bringing into force on 26 October 2024 the Worker Protection (Amendment of Equality Act 2010) Act 2023 which will:-
- introduce a new mandatory duty on employers to take “reasonable steps” to prevent the sexual harassment of their employees in the course of employment;
- give employment tribunals the power to uplift compensation for successful tribunal claims by up to 25% where an employer is found to have breached the new duty to prevent sexual harassment; and
- give the Equality and Human Rights Commission (EHRC) the power to enforce this new duty which includes conducting investigations into suspected unlawful acts; entering into binding agreements with persons or organisations in order to address ongoing issues of discrimination or harassment; and assist with or intervene in certain disputes.
Employers will already be mindful of the fact that sexual harassment in the workplace is unlawful and many will already have anti-discrimination and harassment policies in place. However, to avoid breaching the new duty, employers will be required to go further and put in place measures to seek to prevent sexual harassment rather than merely reacting to it, to encourage an inclusive culture where staff feel safe to speak up.
The EHRC issued draft guidance on the duty on which the consultation closed on 8 August 2024 and we are waiting for the EHRC’s response and final guidance. The draft guidance is nevertheless a useful source of the kinds of measures employers will be expected to take which include (but are not limited to) the following:
- Ensure you have a sexual harassment policy in place or update existing policies which clarify the law, expected behaviours and complaints mechanisms, encouraging staff to report any sexual harassment in the workplace;
- Conduct mandatory training for staff to raise awareness of the employer’s policies and employees’ rights, and separate training for managers on how to handle a complaint;
- Put in place a process for reviewing the effectiveness of the updated policies and training and have a timetable for refresher training for management and staff;
- Consider how complaints from third parties will be dealt with. Although there is no law specifically about third party sexual harassment, the EHRC draft guidance envisages that the duty includes prevention of sexual harassment by third parties;
- Conduct risk assessments and regular staff surveys to seek to understand the extent of the potential problem in the organisation; and
- Consult with the workforce and/or unions about what steps they think the organisation could take to prevent sexual harassment.
What is a “reasonable step” will vary from employer to employer considering the environment, the likely risks, and the size and resources of the employer.
If employees are aware that their employer is taking active steps to prevent harassment this should help to create a culture intolerance of such behaviour and openness to address it. Employees may then be more likely to report incidents in the future. The new duty is a clear attempt to change the culture at organisations (where it is necessary to do so) and ensure that this shift is supported by those right at the top.
To conclude, whilst the new duty does not create a free standing legal claim, breaching the duty could lead to increased compensation if a claim which involves sexual harassment is successful.
Jones Chase always wants to help its clients stay up to date with the law and we are more than happy to put together a tailored package for you, depending upon your specific needs. For businesses, this can include updating or preparing a new policy on sexual harassment; providing guidance on the implementation and the practical implications of the policy; and specialist advice on steps an organisation can take to comply with the new law. If you are interested in finding out more, please contact lauren.sexton@joneschase.com. We would be delighted to discuss your needs and let you know how we can help.