The new proactive duty on employers to take reasonable steps to prevent sexual harassment in the workplace comes into force on 26 October 2024.
Action Required: New Duty to prevent sexual harassment of workers in force from 26 October 2024
The new, proactive duty on employers to take ‘reasonable steps’ to prevent sexual harassment in the course of employment comes into force on 26 October 2024.
Sexual harassment occurs when a worker is subjected to unwanted conduct which is of a sexual nature. Examples include, but are not limited to:
- Sexual comments or jokes
- Displaying sexually graphic material
- Unwelcome touching, massaging or kissing
The Equality and Human Rights Commission (EHRC) has now published updated guidance to assist employers in understanding and complying with their obligations. Helpfully it has also published an 8 step guide summarising how employers can seek to prevent sexual harassment at work.
Notably, whilst an employer will not generally be liable if a third parties harasses its workers and a worker cannot bring a stand alone claim for third party harassment, the EHRC guidance specifically states that as well as the new preventative duty requiring employers to take reasonable steps to prevent sexual harassment by their own workers, “it also requires employers to take reasonable steps to prevent sexual harassment of workers by third parties, such as clients and customers.” It is evident then that in order to comply with the preventative duty employers must not overlook the risk of third party sexual harassment and will need to address identify and address these risk head on.
So what can you do?
The aim of the new duty is to improve workplace cultures and requires employers to go beyond the bare minimum, the clear message being that this is not simply a tick box exercise. We highlight below just 3 of the absolute minimum steps that should be taken:
- Anti harassment policies should be reviewed and updated. Whilst a separate policy on sexual harassment is not a requirement, having a separate policy with a more detailed procedure for investigation, may encourage employees to come forward and may also assist in demonstrating that you have taken reasonable steps to prevent sexual harassment.
- Undertake a risk assessment and take steps to reduce those risks. Do not wait until sexual harassment happens before acting. Notably the guidance states that an employer is unlikely to be able to comply with the preventative duty unless they carry out a risk assessment.
- Staff engagement and training. Consider your work cultures and current practices and consider frequency of refresher training and levels of awareness. For example, do all staff know what sexual harassment in the workplace looks like or what to do if they experience or witness it?
What happens if we don’t comply?
- Employment Tribunals will have the power to uplift sexual harassment compensation by up to 25% where a worker succeeds in a sexual harassment claim and the employer is found to have breached this preventative duty.
- The EHRC will also be able to take enforcement action and conduct investigations independently of any incident having taken place.
Get in touch with us for more detailed advice and support on how to comply with this duty and mitigate your legal risks.
