Since 26 October 2024, employers are legally required to take reasonable steps to prevent sexual harassment of their employees. This new duty complements the existing obligation not to sexually harass employees (or applicants) in relation to their employment.
Understanding sexual harassment
In this context, sexual harassment is defined in the Equality Act 2010 as:
unwanted conduct of a sexual nature which has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
What does the new duty to prevent sexual harassment involve?
This new duty is specific to sexual harassment. It does not extend to harassment related to other protected characteristics under the Equality Act 2010, such as race, disability and religion. However, it includes harassment by third parties such as suppliers and customers, as well as harassment between employees.
The duty does not establish a separate legal claim for employees against their employers. Instead, if a tribunal finds sexual harassment and the employer has also breached this duty, the tribunal may increase the employee’s compensation award by up to 25% to reflect the extent of the breach.
In addition, the Equality and Human Rights Commission (ECHR) may investigate employers who breach the duty. Possible outcomes of an investigation include the ECHR issuing an unlawful act notice requiring the employer to prepare an action plan or requiring the employer to enter into a binding agreement to remedy the breach.
Resources available for employers
The ECHR has updated its guidance:
- Technical Guidance: Sexual harassment and harassment at work | EHRC
- 8- Step Guide: Preventing sexual harassment at work | EHRC
The EHRC notes that risk assessments are crucial for compliance.
Key takeaways for employers
- there are no exemptions: all employers must comply with this duty
- Employers must take proactive steps: employers must anticipate how sexual harassment might happen and take reasonable, proactive stepts to prevent it
- Flexibility in compliance: no uniform steps are required. Reasonable steps will depend on
- your company size and resources
- the workplace environment and your business sector
- the risks present in the workplace
- contact with third parties (type of contact, frequency and environment)
- Factors to consider when establishing “reasonable steps”: EHEC guidance outlines some factors to consider
- the effectiveness of a particular step or a potential alternative step
- time, cost and potential disruption of a particular step, weighed against it’s benefit
- past concerns of sexual harassment raised with the employer
- compliance with any relevant regulatory standards
- evaluation of the effectiveness of existing policies and actions
A step can still be considered reasonable even if it would not have prevented a specific instance of sexual harassment
Practical steps for employers
Employers can take the following actions to comply with the new duty:
- develop an effective anti-harassment policy: create a clear policy outlining:
- reporting procedures
- consequences for harassment
- engage with employees: seek feedback to identify potential issues, evaluate existing measures and ensure policy awareness
- conduct risk assessments: identify and address areas of risk within your workplace
- introduce a reporting system: provide mechanisms for reporting concerns anonymously or in name
- train employees and managers: undertake staff training on what sexual harassment looks like, what to do if they experience or witness it and how to handle complaints of harassment
- respond effectively to complaints: have an action plan to resolve harassment complaints when made
- address third-party risks: implement measures to prevent harassment from suppliers, clients or other third parties
- evaluate and improve: regularly assess the effectiveness of your policies and update them as needed
Final thoughts
A reasonable step may not prevent every act of harassment, but actively assesing and addressing risks is vital for compliance and fostering a safe work environment.
By implementing practical measures based on thorough assements of your particular work environment, as an employer, you can comply with the law while building a healthier and more respectful workplace culture.
