Duty to Prevent Sexual Harassment (in force 26 October 2024)
The Worker Protection (Amendment of Equality Act 2010) Act 2023 (the “Act”) is due to come into force on 26 October 2024.
The Act will impose a positive obligation on the employer to take “reasonable steps” to protect their workers from sexual harassment in the workplace. This obligation is anticipatory to avoid scenarios of workplace sexual harassment taking place.
What amounts to sexual harassment?
Sexual harassment is defined as “unwanted conduct of a sexual nature which has the purpose or effect of violating the dignity of a worker, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.”
Workers may experience sexual harassment from other workers in the same establishment, or third parties during the course of work. They may be exposed to this through verbal forms such as comments about an individual’s appearance or questions about their sex life or offensive jokes. Non-verbal examples may include unwanted physical advances or displaying pornographic photos.
Initially the question as to whether the victim has been sexually harassed is judged from the victim’s perspective.
The obligation to take reasonable steps
The question of whether the employer has taken reasonable steps to prevent such sexual harassment in the workplace is judged objectively and again will depend on the individual circumstances and facts of the case.
To assist employers to understand their obligations, the Equalities and Human Rights Commission (EHRC) has updated its guidance on sexual harassment and harassment at work, see Consultation: technical guidance on sexual harassment and harassment at work | EHRC (equalityhumanrights.com)
According to clause 3.31 of the guidance, “an employer should:
- Consider the risks of sexual harassment occurring in the course of employment
- Consider what steps it could take to reduce those risks and prevent sexual harassment of their workers
- Consider which of those steps it would be reasonable for it to take
- Implement those reasonable steps
Previously it was suggested that the legislation should require employers to take “all” reasonable steps to prevent sexual harassment in the workplace. This was amended as it was thought to be too onerous on employers and employers will now be required to take “reasonable steps”. However, the obligation remaining is onerous. What is deemed reasonable will depend on a variety of factors, including the size of the business, the sector, the facilities available and the types of third parties workers may come into contact with.
Whether the employer has taken “reasonable steps” may depend on whether other, more effective, alternative steps were available.
Acts of third parties
Initially, any reference to liability for harassment of acts of third parties was removed from the Act. However, the guidance proposes that the updated Act will be extended to apply to both actions of workers and also third parties. The guidance states, at clause 3.27 “the preventative duty includes prevention of sexual harassment by third parties. Therefore, if an employer does not take reasonable steps to prevent sexual harassment of their workers by third parties, the preventative duty will be breached.”
The extension to third party acts will be of particular concern to those with public facing employees. Certain sectors may be more susceptible to external influences which are more difficult to control. For instance, workers within the hospitality sector may be more likely to encounter third parties i.e. customers in a bar/ restaurant, so employers may reasonably be expected to implement more controls.
Failure to Comply
In the event that the employer does not comply with the Act by failing to implement this positive obligation, and the worker is successful in bringing a claim against the Employer for sexual harassment, Employment Tribunals will have the ability to increase compensation by up to 25%.
The EHRC will also have powers to take enforcement action against the employer. The enforcement powers will include:
- Investigating the employer
- Issuing an unlawful act notice
- Requiring the employer to enter into a legally binding agreement in order to prevent any future breaches
- Asking the Court for an injunction in order to restrain an employer from committing a breach or unlawful act
These powers also extend to situations in which the EHRC deem that an employer has failed to comply with the preventative duty.
Practical steps to consider
Employers should consider undertaking a form of risk assessment in order to ascertain how much of a problem sexual harassment is within the workplace. Employers should consider asking workers whether they ever have, or if they currently are being subjected to sexual harassment in the workplace. Employers can then use this data to establish whether there are any common trends, for example are the victims a particular class of people or persons with particular characteristics? Perhaps there might be a common perpetrator, or the act may occur at particular times or shifts, or under the supervision of particular managers.
Organisations should have a sexual harassment policy in place which should be circulated to all workers. All employers should ensure their workers are aware of the policy and understand the procedure in order to report any occurrence of sexual harassment.
Training is highly recommended to cover issues such as:
- What amounts to harassment
- What are the standards of behaviour expected and required (including at work-related social events)
- How to report harassment
- How to deal with reports of harassment
The Rollits’ employment team can provide this training or assist you with other practical steps including drafting policies and procedures, and the risk assessment process.
If you would like to discuss this new duty, training or any of the other steps that you should be taking, please contact our employment team.
