How to get ready for the new duty to prevent sexual harassment of employees

Employers need to get ready for the new duty, expected to take effect in October 2024

In November 2023, our article ‘New duty on employers to take reasonable steps to prevent sexual harassment of employees’ highlighted the passing of the Worker Protection (Amendment of Equality Act 2010) Act 2023 (the Act), which makes the following amends to the Equality Act 2010:

• It introduces a new duty on employers to take reasonable steps to prevent sexual harassment of their employees, and
• Gives employment tribunals the power to uplift sexual harassment compensation by up to 25% where an employer is found to have breached the new duty. 

As noted in our article the final version of the Act does not make employers liable for third party harassment of employees but places an obligation on an employer to take ‘reasonable steps’ to prevent sexual harassment in the workforce by its own staff. Failure to take such steps leaves employers open to a 25% uplift to any compensation awarded against them for sexual harassment.

In addition, employers also need to be aware of the little-discussed enforcement powers of the Equality and Human Rights Commission (ECHR) under which the ECHR may conduct investigations, issue unlawful act notices for breach of the Act and enter into agreements with employers to take specific action to prevent breaches of the Act.

The new duty – reasonable steps

The concept that employers need to take ‘all reasonable steps’ to prevent harassment already exists in anti-discrimination law, which can make this quite a difficult standard for employers to achieve when defending discrimination claims, as the plain meaning of the words means employers need to identify what all the reasonable steps are and take them to be able to claim the defence.

In contrast, the duty in the Act specifically in relation to sexual harassment is that an employer must take ‘reasonable steps’ to prevent harassment of employees in the course of their employment. Importantly, this is a duty as opposed to a defence that employers can run under the Act, meaning that there is a positive obligation on employers to prevent harassment.

Getting ready for the new duty

The Equality and Human Rights Commission’s guidance on sexual harassment in the workplace is expected to be updated in due course ahead of the new duty coming into effect, but in the meantime there are some steps employers can take to get ready.

Firstly, it is important for employers to recognise that what steps are ‘reasonable’ will vary from employer to employer. Larger employers with more resources will be expected to do more to give effect to the duty than smaller employers, but in all cases an employer should consider the following steps:

1. 1.        Have a well-resourced complaint handling process

It is crucial that employers have a system and process in place that allows complaints to be made and dealt with effectively. Ideally that system should give staff confidence that if they need to raise complaints of sexual harassment they will be dealt with sensitively and fairly.

Ultimately it doesn’t matter how good a process is on paper if an employer is not able to execute it with the confidence of staff. Ways to build confidence include:

• put in place training for staff who will investigate and make decisions in relation to sexual harassment complaints
• advertise the existence of the policy and where it can be found
• make resources available to help staff with any questions (e.g. HR team if you have one or a designated manager, director, or board member if not)
• being clear that complaints shall be dealt with in confidence, but being clear that anonymity cannot be guaranteed in all cases
• have a clear reporting line so that if the issue is with an employee’s line manager they can report it further up the chain, and externally if needs be 

1. 2.        Raise awareness of the issue

Whilst having policies and procedures addressing sexual harassment are important, an employer is unlikely to be seen to be acting reasonably if they leave efforts there. An employer should be able to demonstrate the steps it has taken to make clear that sexual harassment will not be tolerated and that those who face it know where to go and what to do to complain about it, and that they should feel free to do so.

This means raising awareness of the issue with staff and management, highlighting that there is a zero-tolerance attitude to sexual harassment and that this has senior management backing. This can be done by raising the issue at team meetings, via staff communications and by implementing mandatory training for staff at all levels.  

As well as this, new staff should as part of their induction be directed to the sexual harassment policy, be informed of their obligations and the likely consequences if they are found to engage in sexual harassment under their employment contract and/or disciplinary rules, and informed that such behaviour will not be tolerated within the organisation. . Refresher training for all staff should be arranged at regular intervals.

Awareness should also be raised with staff around conduct at work-arranged social events and staff and management need to be alive to the higher risk environment this creates.

1. 3.        Ensure there are regular reviews

Policies, procedures, training and awareness should be regularly reviewed to see whether more needs to be done or if the approach might benefit from alterations.

If there are any complaints, it is worth employers considering what went well and what could be improved in terms of how it was handled and questioning whether staff felt supported. This could include inviting feedback from staff who engage in the procedure.

Conclusions

The new duty on employers to take reasonable steps to prevent sexual harassment will necessitate a review of existing policies and procedures and likely the introduction of new ones. In addition, the supporting actions needed to help integrate awareness around sexual harassment, a zero-tolerance approach to it, and gaining the trust and confidence of staff that such matters will be addressed properly will be key and take some time to implement.

Luckily, there is still time for employers to get to grips with these requirements ahead of the expected implementation of the duty in October 2024.