The law on workplace sexual harassment is changing. Below, we summarise what you need to know, and how to prepare for the changes.
Sexual harassment
The Government has passed legislation that will introduce a new duty on employers to take reasonable steps to prevent sexual harassment of their employees. If an employer fails to do so, and an employee succeeds in a claim of sexual harassment, then compensation will be increased by up to 25%.
Also, regardless of whether any sexual harassment claim is brought, this new duty will be enforceable by the Equality and Human Rights Commission (EHRC) which may require employers to prepare and develop an action plan (as it did earlier this year with McDonald's and IKEA). The EHRC is also developing a new statutory code of practice on sexual harassment at work, specifying the steps employers should take to prevent harassment. Employment tribunals will be required to take the code of practice into account when deciding whether or not the employer took reasonable steps to prevent sexual harassment.
The new duty will come into force on 26 October 2024, to give employers time to prepare.
Third party harassment
The Government had originally proposed a new law specifically covering liability for harassment of employees by third parties, such as customers or suppliers but this proposal was dropped as the legislation progressed through parliament. This means that the position remains as it is now, namely that it is possible to bring claims relating to third party harassment under the existing laws in certain circumstances, but it is not straightforward. However, given the overall duty on employers to prevent sexual harassment, it would be advisable for employers to consider the extent to which employees may be at risk of harassment from clients, suppliers or other third parties and how this might be prevented.
Preparing for the changes
There are various steps which employers should consider taking to prepare for the changes including:
Risk spotting/culture audit: Are there any aspects of your business or industry which give rise to particular risks of harassment, either by employees or by third-parties, and if so how can you mitigate these? Would it be helpful to carry out a culture audit (for example, using an anonymous survey) to assess whether there may be other risks of which you are unaware?
Updating diversity policies: Do your diversity policies need to be updated to ensure that sexual harassment is covered in enough detail? Should you have a separate policy on sexual harassment? Does your policy address third party harassment?
Reviewing "speak up" processes: Do your "speak up" or whistleblowing policies and procedures make it clear that employees can use them to raise harassment issues? Does this extend to raising concerns about third party harassment? Are employees aware of these processes and comfortable using them and, if not, how can you raise awareness?
Refreshing training: Should managers and employees undergo updated diversity training if they have not received training for a while? Are your managers properly trained in "speak up" and "listen up" processes and do they feel equipped to handle complaints (including informal complaints)?
Considering client/supplier relationships: To what extent do you communicate your diversity/anti-harassment policies to third parties such as clients, customers or suppliers? Should you consider sending them your policies or amending your contracts specifically to cover harassment? What do your current supplier terms say, if anything, about treatment of your employees?
How we can help
We regularly work with our clients in all of these areas. If you would like to discuss the steps that your business should be taking to prepare for the new laws, please get in touch with any of us or with your usual employment department contact.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
