From tomorrow, 26 October 2024, a new statutory duty, part of the Worker Protection (Amendment of Equality Act 2010) Act 2023, strengthens the protection available to employees by introducing a new duty on employers to “take reasonable steps” to prevent sexual harassment at work. There will be a corresponding new compensation uplift of up to 25% in Employment Tribunal claims for breach of the new duty. This duty creates a new risk area for employers. Aside from the financial impact, claims can be damaging in other ways, causing reputational damage and occupying senior management time. They can also negatively affect recruitment and employee retention.
What steps must employers take?
The new legislation marks a shift from redress to proactive prevention, putting the onus on employers to take proactive measures. In other words, employers must take proactive steps to anticipate scenarios where workers may be subject to sexual harassment in the workplace and take action to prevent it. If sexual harassment does take place, employers must take steps to ensure that it does not happen again.
To assist employers with this new duty, the Equality & Human Rights Commission has updated its existing Technical Guidance on sexual harassment and harassment at work (EHRC Guidance). The final version was published on 26 September 2024 and contains detailed examples of preventative measures employers should take. In addition, the EHRC has published an 8 step guide as follows:
1. Conduct a sexual harassment risk assessment
The purpose of the risk assessment is to identify the factors that might increase the likelihood of sexual harassment and the steps that can be taken to minimise them. Employers should include any likelihood of third-party sexual harassment. They should also consult with unions or employee representatives in terms of what they think the risks are and what steps should be taken and make an action plan.
2. Put in place an effective anti-harassment policy
Employers must ensure that such policies are regularly reviewed and evaluated and communicated to staff including at induction. The policy must provide a way for non-employees to raise complaints. Employers should consider whether to publish policies on their website, and/or share them with contractors or clients.
3. Engage with staff to understand where any potential issues lie
Employers should engage with staff to understand any potential issues and whether the steps the employer is taking are working via 1-2-1s, staff surveys, exit interviews, focus groups and open door policies. This should be done on a continual basis. Employers should be alert to warning signs that harassment is taking place such as sickness absences or changes in behaviour and/or performance.
4. Consider reporting channels and keep confidential records of all concerns raised
It is important to create a culture where employees feel safe to report harassment and employers should consider using a system that allows workers to raise issues anonymously. Any reports should be dealt with immediately, consistently, and sensitively and people raising concerns should feel supported, taken seriously and protected from reprisal. Employers should reflect on the outcome of any investigation to identify risk areas in the business or cultural issues and make changes accordingly.
Training is one of the most critical steps employers can take to prevent harassment. Employers should review the effectiveness of training at all levels and offer refresher sessions regularly, keeping a record of attendees. Training should ensure all workers are aware of the policies, what sexual harassment looks like, what to do if they experience or witness it and how to handle complaints. If third party harassment is likely, workers should be trained on how to address these issues. Employers should consider targeted training for different seniority levels and for specific sections of the business, with tailored situational examples.
6. Use confidentiality clauses only with extreme caution
Employers should only use these where it is lawful, necessary, and appropriate. It’s important not to restrict workers from speaking out about sexual harassment.
7. Address power imbalances and unsatisfactory workplace culture
Employers should consider a full workplace culture audit to identify issues and steps to take in this respect, e.g. appointing a sexual harassment champion, holding awareness weeks or delivering internal campaigns. It is also recommended that senior leadership deliver anti-harassment messaging.
8. Monitor and evaluate actions taken
Employers should regularly evaluate the effectiveness of the steps put in place to prevent sexual harassment and implement any changes arising from that. They should consider anonymously surveying staff on their experiences and holding ‘lessons learned’ sessions after complaints have been resolved.
Keeping detailed records of all actions taken will be essential if an organisation needs to defend itself in an Employment Tribunal or if the EHRC investigates a complaint. By having clear documentation, employers can demonstrate that they have taken all reasonable steps to prevent harassment, which may help protect them from liability.
Concluding comments
Irwin Mitchell recently published an analysis of Employment Tribunal decisions in England, Wales & Scotland and found that since 2019 cases relating to sexual harassment have increased by 46.5%.
It seems likely that claims and complaints will continue to rise as cultures change and confidence to assert concerns increase with the introduction of this new duty. It is therefore crucial that employers bring about systemic change by putting in place the measures recommended by the EHRC guidance not only to reduce their risk of claims but to create safer and more positive and inclusive work environments.
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