Compliance
Preparing for the New Duty to Prevent Sexual Harassment
Author
Barbora Korcova
Author
Barbora Korcova
September 3, 2024
Compliance
Employment Law
From 26 October 2024, a significant new legal obligation will come into force for employers in the UK, requiring them to take proactive steps to prevent sexual harassment in the workplace. The Worker Protection (Amendment of Equality Act 2010) Act 2023 introduces this new requirement. Employers should start preparing now to ensure compliance.
What is sexual harassment?
Sexual harassment is defined in section 26(2)(a) of the Equality Act 2010 as an ‘unwanted conduct of a sexual nature’. This definition covers a broad range of behaviours that may be verbal, non-verbal, or physical. The key element is that the conduct must be ‘unwanted,’ meaning that it is not solicited or welcomed by the person subjected to it.
Conduct of a sexual nature can include, but is not limited to, unwanted sexual advances, requests for sexual favours or sexually explicit comments. It may also involve displaying or circulating sexually suggestive material, such as pictures or texts. It does not matter whether the conduct was intended to be offensive. If it has the effect of making the recipient feel threatened, humiliated or uncomfortable, it may constitute sexual harassment.
What is changing?
Currently, while sexual harassment is prohibited by law, employers are primarily focused on responding to incidents that have already occurred. Employers are liable for harassment committed by their employees but can defend themselves if they demonstrate they took “all reasonable steps” to prevent such behaviour.
However, the new law goes further by imposing a positive duty on employers to proactively implement reasonable measures to prevent sexual harassment from occurring in the first place.
The positive duty includes a duty to prevent sexual harassment by third parties. Third parties can include a wide range of individuals, such as customers, clients, colleagues’ friends and family members and the general public.
How to comply?
The Equality and Human Rights Commission (ECHR) will soon publish updated guidance on this new duty. The draft guidance is currently available here.
The new draft guidance introduces a dedicated section on the so-called ‘preventative duty’. According to this section, employers should not wait until an incident of sexual harassment has taken place. They should anticipate potential situations where employees could be subject to such conduct in the course of their employment and take reasonable steps to prevent it. This also means that if sexual harassment has taken place, an employer must take action to prevent it from happening again.
Reasonable steps will vary depending on factors like the employer’s size, sector, working environment and resources.
While there are no minimum requirements for compliance, every employer is subject to this preventative duty.
Practical steps how to comply include:
- Risk assessment
It is crucial for employers to assess and understand specific risks within their business and take action to address them. Conducting a risk assessment can help identify potential risks that employees may face. Employers should take steps to minimise these risks by updating internal policies and procedures related to sexual harassment, providing training to employees and regularly reviewing effectiveness of these measures. Refresher training should also be provided as needed.
- Effective training for employees
The case of Allay (UK) Limited v. Gehlen UKEAT/0031/20/AT demonstrated that employers might still be held liable for harassment even if they have policies and procedures in place if those are not effective. In this case, the court found that a ‘tick-box’ approach to training did not constitute taking ‘reasonable steps’ to prevent harassment. The court noted that a ‘brief and superficial training is unlikely to have substantial effect in preventing harassment’ and that ‘such training is also unlikely to have long-lasting consequences’.
Therefore, employers should assess how effective their preventative steps are in practice. And in case the training that was previously provided is not effective anymore, take further steps to provide a refresher training.
Different types of training should be designed for different groups of employees. For example, managers should receive specific training on handling harassment complaints from their subordinates.
- Handling complaints effectively
Employers should handle all complaints promptly and effectively.
This means establishing clear and easily accessible reporting channels that allow employees to raise concerns without fear of retaliation. Employers should treat all concerns and complaints seriously, without delay and maintain confidentiality to protect all parties involved to the maximum extent possible. Employers should conduct a prompt and impartial investigation by appointing a qualified investigator without any conflict of interest. The process must be fair, giving both the complainant and the accused the opportunity to present their side. Once the investigation is concluded, employers should communicate the outcome, take appropriate disciplinary action if necessary, and inform the complainant of the steps taken while maintaining confidentiality.
After resolving a complaint, it is important to review the circumstances to identify any gaps in existing policies or training that may have allowed the harassment to occur. Updating policies and providing additional training can help prevent future incidents. Employers should maintain detailed records of all complaints, investigations, findings and actions taken and regularly monitor the workplace to ensure that harassment does not recur.
It is also beneficial to seek legal advice in particularly severe or complex cases to ensure compliance with the law and reduce the risk of liability.
What happens if you don’t comply?
Failure to comply with this new obligation could lead to severe financial and reputational consequences.
If an employee brings a claim against their employer and they are successfull, employment tribunals may increase compensation awards by up to 25%. There is no cap on the compensation that can be awarded for harassment.
EHRC also has enforcement powers, including conducting investigations that could further harm an employer’s reputation.
Comment
Is your business prepared for the new duty to prevent sexual harassment? With these changes coming into effect in October, now is the time to take action.
At EM Law, we can help you navigate these new legal requirements and ensure your workplace is fully compliant. From tailored training programs and risk assessments to reviewing and updating your policies, our team of solicitors is here to support you. Don’t wait until it’s too late—contact us today to discuss how we can help your business prepare for this important change.
