Employers will soon have an obligation to proactively prevent sexual harassment in the workplace when the Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force on 26 October 2024.
The new legislation will:
- provide a new duty on employers to take reasonable steps to prevent workplace sexual harassment of their employees and
- give tribunals the ability to increase sexual harassment compensation by up to 25% if an employer is found to breach the new duty.
How is Sexual Harassment Defined?
Sexual harassment is defined in the law as:
- unwanted conduct of a sexual nature
- that either violated someone’s dignity, whether intended or not or created an intimidating, hostile, degrading, humiliating or offensive environment for that person.
Examples of sexual harassment include:
- flirting or making sexual comments or jokes about someone
- touching someone without their consent, for example, hugging them
- making sexual advances towards someone
- displaying sexually graphic pictures, photos or posters
- intrusive questioning about a person’s sex life.
What Does The New Duty Mean For Employers?
Currently, employment law simply provides a remedy to employees who have been sexually harassed in the workplace by allowing them to bring an employment claim.
The new law means that employers will need to take reasonable steps to prevent sexual harassment. As a result, you will need to be proactive in how you prevent and tackle sexual harassment at work. You will also need to anticipate potential scenarios where employees might be at risk of harassment and take steps to prevent such incidents from occurring.
The new duty covers sexual harassment occurring in the workplace but will also cover harassment taking place at work-related events such as off-site, parties, leaving drinks or conferences.
What Happens if I Don’t Comply with the New Duty?
If it is found that you haven’t taken reasonable steps to prevent sexual harassment in the workplace, the Equality and Human Rights Commission (EHRC) may take enforcement action against you.
Furthermore, if an individual brings a claim against you and the employment tribunal holds that they were subjected to sexual harassment, it will have a new power to increase the compensation awarded to them by up to 25% if you have failed to comply with the new duty.
Organisations seen not to be taking the issue of sexual harassment seriously are also likely to suffer reputational damage and this could also impact relationships with staff, customers and suppliers.
What Should I Do To Prepare?
There is no ‘one-size fits all’ solution to preparing for the new duty - factors such as the resources available to you, your organisation’s size, sector and working environment will all need to be taken into account when assessing what is necessary for you to comply with the new duty. However, you may wish to consider the following measures:
- ensuring that you have a specific stand-alone sexual harassment policy in place, which clearly defines sexual harassment. A general policy on discrimination or harassment is unlikely to be sufficient to comply with the new duty. Furthermore, you should make sure this policy is regularly reviewed and accessible to all staff.
- provide regular training on sexual harassment. Make your staff aware of what constitutes harassment and how staff affected by it can make complaints.
- be mindful of any potential harassment from third parties, such as customers or clients.
- make it clear that your company has zero tolerance towards sexual harassment. This should be communicated from the top through clear and effective communications and should include regular reminders about staff behaviour expectations.
- having a transparent and robust channel for complaints. It is important to have easily accessible channels to report incidents of workplace incidents, including sexual harassment. This should be set out in your sexual harassment policy and should also be available on your company’s intranet site.
- undertaking risk assessments to anticipate situations when staff members may be subject to sexual harassment and take action to prevent such harassment from taking place.
- ensuring any complaints lodged are investigated thoroughly and promptly and that you document all the steps taken.
The EHRC is due to publish the final draft of its updated technical guidance on sexual harassment in the workplace this month to help employers comply with this duty. Once this is available, we will provide further details and you can cross-check any preparatory steps you have taken to date with this guidance to ensure compliance.
We are Here to Help
In advance of the new duty coming into force next month, you should review your relevant policies to ensure they offer as much protection as possible. If you need help with such policies or require advice on any aspect of the new duty, please contact our expert Employment team on 0300 303 2071 or email us.
