A ne mandatory duty on employers to prevent sexual harassment in the workplace will come into effect on 26 October 2024, as implemented by the Worker Protection (Amendment of Equality Act 2010) Act 2023. The main provisions of the Act will:
- Introduce a duty on employers to take reasonable steps to prevent sexual harassment of their employees.
- Give Employment Tribunals the power to uplift sexual harassment compensation by up to 25% where an employer is found to have breached the new duty to prevent sexual harassment.
The original Worker Protection Bill also proposed the reintroduction of employer liability for harassment by third parties. However, this was removed this provision from the Bill by the House of Lords. Reference to reintroducing this has been made by the New Labour Government.
The New Duty
Employers will be required to take reasonable steps to prevent sexual harassment of employees in the course of their employment. The EHRC will be able to enforce the new duty and Employment Tribunals will be able to award an uplift to an employee's compensation where it finds there has been a breach of the duty.
The technical guidance and EHRC Code are due to be updated to reflect the new duty in advance of it coming into force in October 2024 and are expected to provide guidance on what will amount to reasonable steps. It is likely that the reasonable steps an employer should take will depend on its size and resources, and the particular industry in which it operates. The following measures could well be included:
- Having a clear and regularly updated policy specifically dealing with sexual harassment.
- Providing mandatory training for all staff on what amounts to sexual harassment, the standards of behaviour expected in the workplace and how to raise a complaint.
- Providing mandatory training for managers on how to handle a sexual harassment complaint.
- Having a zero-tolerance workplace culture in relation to sexual harassment, which is openly supported by senior management.
- Encouraging the reporting of sexual harassment via different methods.
- Having a clear process to make and investigate complaints and providing appropriate support to those who raise complaints.
- Monitoring the progress of all sexual harassment complaints to ensure that they are properly investigated and resolved, repeat offenders are dealt with appropriately.
- Monitoring the progress of employees who make complaints or are witnesses to sexual harassment to ensure that no victimisation takes place.
- Conducting regular staff surveys to ascertain the extent of any problem or potential risk of sexual harassment.
- Identifying particular risk areas and putting in place effective measures to minimise those risks.
- Having workplace champions to provide support and advice to those who experience or witness sexual harassment.
Statutory code of practice on sexual harassment
In conjunction with the new Act, the then government asked the EHRC to develop a new statutory code of practice.
EHRC have been revising older technical guidance and consulting on a new draft Code and it is anticipated that its final revised guidance will be published in September 2024, a month before the changes introduced by Act itself.
Actions
In anticipation of the new duty it would be advisable for employers to start acting now if they haven't already turned their minds to this, and preparing. Initial training could be undertaken and rolled out across the business, with training also being introduce at induction stage for new hires. A review and overhaul of internal policies is essential.
An initial audit or "litmus test" survey of employees could be a useful starting point to help identify areas of risk and where it may be sensible to focus efforts initially.
The duty will endure and it will remain important to ensure ongoing refresher training at all stages of employment, as well as refreshing audits, procedures and policies etc. Appointing someone to have overall responsibility of the regime, training and policies and procedures is probably sensible as well.
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.