From 26 October 2024 employers have a new duty to proactively take “reasonable steps” to prevent sexual harassment when the Worker Protection (Amendment of Equality Act) Act 2023 comes into force. The Equality and Human Rights Commission (“EHRC”) has recently published a consultation on amendments to its technical guidance on sexual harassment and harassment at work, which contains extra information on the new preventative duty:-
https://www.equalityhumanrights.com/guidance/consultation-technical-guidance-sexual-harassment-and-harassment-work
Current law
The current law is being added to so the following existing rules will continue to apply:-
· sexual harassment is prohibited and employers are vicariously liable for sexual harassment committed by their employees during their employment.
· provided that an employer can meet the very high threshold of showing that it took “all reasonable steps” (e.g. ensuring that employees regularly receive updated equality training etc) to prevent harassment, then it can potentially defend the claim and avoid liability entirely. Tribunals have been reluctant in practice to accept that employers have satisfied the “all reasonable steps” defence.
What is changing?
The purpose of the new law is to shift the focus of employers in the direction of taking proactive measures to identify risks and to prevent sexual harassment, rather than focusing on addressing harassment in a reactive way.
The new law creates a positive legal obligation for employers to try to stop sexual harassment from happening in the first place by taking reasonable steps to prevent it.
If an employee is successful with an Employment Tribunal claim for sexual harassment and the employer is found to have breached its duty to take reasonable steps to avoid the sexual harassment then the tribunal will be able to uplift compensation for harassment by up to 25%. There is no cap to the compensation which can be awarded for discriminatory harassment so this uplift could be very significant.
In addition the EHRC can investigate employers and take enforcement action based on a suspicion of non-compliance. It can act before there is a claim and there does not need to be an incident of sexual harassment before the EHRC will consider exercising its enforcement powers.
Is third party harassment covered?
Potentially yes and it would be prudent to proceed with this assumption given that EHRC guidance states that there is a duty to prevent sexual harassment by third parties, such as clients and customers, service users and members of the public, and that employers should consider the risk of sexual harassment and take reasonable measures to mitigate such risk.
What are ‘reasonable steps’?
What this means in practice will depend on the employer’s unique circumstances, including size and resources. The EHRC has published a draft of its updated guidance on sexual harassment to reflect the new obligation. This confirms that employers will need to anticipate scenarios when employees may be subject to sexual harassment during employment and take action to prevent it. The preventative duty also means that, if sexual harassment has taken place, the employer should take action to stop it from happening again. This indicates that assessing risk will be important.
Training
Training needs to be effective if it is going to count as one of the reasonable steps. Recent tribunal caselaw indicates that training which is simply a tick-box exercise or which is ‘stale’ because it is old or no longer relevant will not be sufficient.
When considering training employers should think about developing the training for different audiences within the business. For example, senior leadership, supervisors and managers might receive training about how to role model appropriate behaviours, how to spot sexual harassment and what to do if they receive a report of harassment. Employees should understand what behaviours can constitute sexual harassment and what their role can be in calling out problematic behaviours.
For training to be effective, it’s important that it is not just a one-off session which is quickly forgotten. Refresher sessions should be arranged on a regular basis and employees should be clear what the overriding messages from the training are. These messages should then be reflected in the business’ practices and embedded into the culture so that the behaviours expected of all staff is clear. Employers should keep records of attendance at training to ensure they can identify who still needs to be covered.
Assessing risk
There are various ways that employers can identify risks, including employee surveys, keeping records of formal or informal complaints, exit interviews and reviewing absence.
Risks will be specific to each particular business, but factors which could increase the risk of sexual harassment may include things like the presence of alcohol at events, lone working, work travel and customer-facing duties. Employers need to identify the real risks in their own business and then consider what can be done to mitigate those risks.
Effective complaints handling process
It is important that employers can demonstrate that they have taken measures to create a culture in which everyone feels safe and can speak up about inappropriate behaviour. There should be clear processes for people to raise concerns about sexual harassment, and anyone who raises concerns should feel that they are being supported, taken seriously and protected from reprisals. All complaints should be investigated and dealt with promptly, fairly and in accordance with a complaints-handling process e.g. grievance procedure.
Don’t forget, as an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.
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