From 26 October 2024, a new preventative and proactive duty will come into force.
A new duty is being placed on employers; the duty is for employers to take reasonable steps to prevent sexual harassment of their employees. This is a key change to current legislation, as the focus now shifts to prevention, to ensure that proactive steps are taken to tackle sexual harassment.
The key purpose of the new duty is to ensure that everyone feels safe and supported at work.
Changes in Obligations
| Obligations pre-26 October 2024 | Obligations from 26 October 2024 |
| Employers are vicariously liable for the actions of their employees unless they take reasonable steps.
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Employer’s must take proactive preventative action in respect of workers and third parties. |
| Employer’s need to show they took reasonable steps when defending Employment Tribunal claim. | Employees can complain to equality authorities regarding their employers not taking reasonable steps to prevent Sexual Harassment even if no allegations have been made. |
| Employment Tribunals have the power to uplift sexual harassment compensation by up to 25% when an employer is found to have breached the new duties. |
More power given to Employees
As a result of the new legislation coming into force, employee’s will be able to complain directly to the EHRC to inform them that their employer has not taken reasonable steps to prevent sexual harassment.
If the EHRC find that the employer has not taken reasonable steps, they can take the following enforcement action against the employer:
– Issue an unlawful act notice and requiring the employer to put an action plan in place to prevent future breaches.
-Enter a formal, legally binding agreement with an employer to prevent future unlawful acts.
– Asking the court for an injunction to restrain an employer from committing an unlawful act.
Third Party Harassment
Employer’s must ensure that they consider the involvement of third parties on the business and ensure that they consider how to prevent third party harassment, one way to do this, is when completing a risk assessment, as to what steps can be taken.
You should be aware that enforcement for third parties is different. The best way to show the difference is by way of examples, as follows:
Example 1:
An employee is sexually harassed by a customer at a hotel she works at. The employee cannot make a claim to the Employment Tribunal that the employer is liable. If, however, it had been a colleague who had sexually harassed the employee, then they could make a claim to the Employment Tribunal.
Example 2:
If an employee reports to the EHRC that their employer is failing to take reasonable steps to prevent harassment by customers (even if no allegation or complaint has been made) the EHRC can take enforcement action against the employer, as set out above.
EHRC Guidance on preventing sexual harassment
The EHRC have produced a helpful 8-step guide for employers on preventing sexual harassment at work. Click here to read the guidance. This guide clearly sets out that whilst eight steps have been identified and that by implementing the steps it should help an employer take positive action to prevent and deal with sexual harassment, it is a non-exhaustive list.
The eight steps are:
- Develop an effective anti-harassment policy.
A good policy should state who is protected, that sexual harassment will not be tolerated and is unlawful, employers are required to take reasonable steps to prevent sexual harassment, define sexual harassment, set out how complaints will be dealt with and address third-party harassment.
It is good practice to have an anti-harassment and bullying policy and a separate sexual harassment policy.
If you require any advice on drafting such a policy, please do not hesitate to get in touch [email protected].
- Engage with staff.
Ensure all workers are aware of how they can report sexual harassment, the sexual harassment policy and the consequences of breaching the policy.
This can be done through 1-2-1s with staff, having an open-door policy for staff to come in and chat with you etc. By having chats with staff, you can identify any potential issues and if the steps implemented are working.
- Assess and take steps to reduce workplace risk.
The EHRC states “An employer is unlikely to comply with the preventative duty unless a risk assessment is carried out”.
Therefore, it is important that you carry out a risk assessment, to identify what reasonable steps need to be taken to minimise the likelihood of sexual harassment and consider the following:
-The risks of sexual harassment occurring in the course of employment for your staff.
-What steps you could take to prevent sexual harassment of workers by other works and third parties.
-Which of the steps would be reasonable for the employer to take.
-Implement the reasonable steps.
If you require advice on how to carry-out a risk assessment and/or what you should consider when carrying out a risk assessment, please do not hesitate to get in touch [email protected].
- Reporting
It is advisable to use a reporting system that allows workers to raise issues anonymously or by name.
- Training
All staff should be trained on sexual harassment in the workplace, what to do if they experience or witness it and how to handle such complaints. If staff deal with third parties such as customers etc. all staff should be trained on how to address such issues.
Training should be reviewed frequently, and refresher sessions should be provided at regular intervals.
- Handling harassment complaints.
It is important that staff know how to deal with such complaints, which is why training is so important.
Once a complaint has been made, an employer should:
-Take into account how the employee wants the matter to be resolved, and act immediately to resolve such an issue.
-Respect confidentiality of all parties.
-Protect the complainant from ongoing harassment or any victimisation during the investigatory process, this also means protecting any witnesses.
-If a complaint of harassment may be a criminal offence, you should speak with the individual about whether they wish to report the matter to the police and that they will be supported should they decide to do this.
- Dealing with third-party harassment.
Any harassment by a third party should be treated just as seriously as if a colleague had harassed an employee.
Preventative steps to protect employees should be taken such as ensuring there are reporting mechanisms in place, assessing high-risk workplaces, for example where staff are required to lone work. Therefore, it is extremely important for employers to consider harassment from third parties when completing a risk assessment.
- Monitoring and evaluating actions.
It is extremely important that employer’s regularly review the effectiveness of the steps that have been put in place to prevent sexual harassment and implement any changes where necessary. This will help an employer show that they are complying with the preventative duty.
The Equality and Human Rights Commission have published amended guidance setting out employer’s legal obligations to take reasonable steps to prevent sexual harassment of their workers. Click here to access the guidance.
If you have any queries in relation to the above, please feel free to contact us on [email protected]