Employers will already be aware that sexual harassment in the workplace is unlawful, and that they can be held vicariously liable for such harassment by their staff and of the need to put in place clear anti-harassment policies.
However, as of the 26th of October 2024, employers now have a positive mandatory duty to take reasonable steps to prevent sexual harassment of their workers. This is called the preventative duty and if employers do not comply with it, they are breaking the law. The new duty not only requires employers to be proactive and take steps to prevent sexual harassment in the workplace but extends the existing law to include preventing sexual harassment by third parties. This means that employers must consider the risk of employees being sexually harassed by third parties in the course of their employment; third parties will include anyone (other than colleagues) who employees are likely to come into contact with in the course of their work.
The new law has been introduced following a report in 2018 by the Women and Equalities Select Committee which highlighted the extent to which sexual harassment in the workplace remains persistent. As a result, the Worker Protection (Amendment of Equality Act 2010) Act 2023 has come into force. The findings of the Select Committee echo reports in the media of widespread sexual harassment in large organisations, the latest of which are allegations of such behaviour by Gregg Wallace in his role on the BBC’s Masterchef.
It is no longer sufficient for employers to put in place a policy and provide some training to staff in order to demonstrate compliance with the new law. The new law demands proactive measures, regular training and monitoring to encourage an inclusive culture where staff feel safe to speak up.
If an employer fails to take reasonable steps to prevent sexual harassment in the workplace the Equality and Human Rights Commission (EHRC) can take enforcement action. Whilst the new law does not create a new free standing claim for breaching the duty, Employment Tribunals can increase the amount of compensation awarded in the event of a successful sexual harassment claim.
The new law does not prescribe specific steps that an employer must take in order to comply with the preventative duty. These steps will vary according to the potential risks for sexual harassment occurring in a particular organisation and the operating environment. There is therefore no “one size fits all” list of steps that employers will need to take. However, all employers must take action and no employer is exempt from the new preventative duty.
Updated guidance from the EHRC suggests that the following steps, which are not exhaustive, should help employers to take positive action to prevent and respond to sexual harassment in the workplace:-
1. Develop and implement an effective and legally compliant anti-harassment policy.
2. Engage your staff via staff surveys, exit interviews and open door policies.
3. Assess the risks and take steps to reduce the risk within your particular workplace. Carrying out a risk assessment will help you to comply with the preventative duty.
4. Reporting – consider using a reporting system that allows and encourages staff to report incidents either openly or anonymously.
5. Training – all staff including senior managers should be trained on sexual harassment in the workplace and how to recognise it, what to do if they witness it or experience it and how to deal with any complaints.
6. Ensure that staff know what to do when a complaint is made.
7. Know how to identify, prevent and deal with sexual harassment by third parties.
8. Monitor and evaluate your actions to ensure the effectiveness of the measures you have in place.
If you require assistance and advice regarding the new preventative duty, we would be pleased to offer bespoke legal advice tailored to your particular organisation. Contact us for more information.
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sarahrobinson@premier-legal.co.uk
Sarah Robinson is the Managing Partner and has specialised exclusively in employment law since qualifying as a solicitor in 1996.
Sarah has considerable experience of representing clients in many different industry sectors including insurance and financial services, corporate finance, technology, legal services, automotive, hotel and catering and media as well as the public sector.
Areas of particular interest include restrictive covenants, TUPE and advising in relation to discrimination.