The new Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force on 26 October 2024.
The Act introduces a new duty on employers to take reasonable steps to prevent sexual harassment of their staff and workers in the course of their employment.
This means that employers will need to take reasonable proactive measures to prevent sexual harassment from occurring in the workplace.
This duty also includes taking steps to prevent sexual harassment by third parties, such as clients and customers.
The law does not list specific steps an employer must take.
Employers may seek to prevent sexual harassment in different ways, but all employers must take action, and no employer is exempt from the sexual harassment preventative duty.
So, what steps should an employer take?
Sexual Harassment Risk Assessment
The Equality and Human Rights Commission's (EHRC's) guidance on sexual harassment and harassment at work makes it clear that an employer is unlikely to comply with the preventative duty if it does not carry out a risk assessment.
This highlights the critical role that risk assessments play.
They enable employers to evaluate the risk of workers being exposed to sexual harassment in the workplace and the steps that can be taken to minimise those risks.
The EHRC suggests that factors that could be taken into consideration when conducting a risk assessment include:
- A male-dominated workforce.
- A workplace culture that permits crude or sexist banter and/or disrespectful behaviour.
- Gendered power imbalances (for example, where the majority of junior staff are female and senior leaders are male).
- Workplaces where alcohol consumption is allowed.
- An expectation for workers to attend social events or conferences offsite or stay overnight (particularly if alcohol is being consumed).
- Lone or isolated working conditions, including with third parties.
- Night working.
- An insecure/casual working arrangement.
- A failure to respond appropriately to previous reports of sexual harassment.
- The absence of policies or procedures to prevent or respond to sexual harassment.
- The presence of workers who have more than one protected characteristic (disabled individuals, ethnic minorities, and people from the LGBT community are more likely to experience sexual harassment).
The guidance states that where there are risks that only affect one job role or one worker, these should still be considered and addressed.
What are Reasonable Steps?
The employer must take "reasonable" steps to prevent sexual harassment of their workers in the course of their employment to comply with the preventative duty.
The EHRC's guidance suggests that what is reasonable will vary for different employers and will depend on factors including, but not limited to:
- The size and resources available to the employer.
- The nature of the working environment.
- The sector in which the employer operates.
- The risks present in the workplace.
- The nature of any interaction with third parties (for example, type of third party, frequency of contact, environment).
- The likely impact of taking a particular step and whether a different approach could be more effective.
- The time, cost, and potential disruption associated with taking a particular step weighed against its potential benefit.
- Whether concerns of sexual harassment have been raised with the employer.
- Compliance with relevant regulatory standards (such as those set by the Financial Conduct Authority or General Medical Council).
- Whether any steps already taken have been effective or ineffective (for example, if a further incident of sexual harassment occurs after steps have been taken, this may indicate that additional and/or alternative action should be considered).
Do Employers need a Designated Lead?
The EHRC guidance suggests that employers may want to consider appointing a designated lead (i.e. a named point of contact) to take responsibility for implementing an action plan and complying with the preventative duty.
The guidance also clearly states that employers should not wait until a complaint of sexual harassment has been raised before taking action.
Breach of the Preventative Duty
If an employer does not take reasonable steps to prevent sexual harassment of their workers, the preventative duty will be breached.
Employment tribunals cannot consider standalone breaches of the preventative duty.
However, if an individual succeeds in a sexual harassment claim and the tribunal finds that the employer breached the preventative duty, compensation can be increased by up to 25%.
It is important to note that the EHRC has enforcement powers and may enforce a standalone breach of the preventative duty as an unlawful act.
Sexual Harassment Prevention Policy Requirements
All employers should ensure an effective and legally compliant policy regarding sexual harassment at work.
An effective and legally compliant policy should:
- Specify who is protected.
- State that sexual harassment will not be tolerated and is unlawful.
- State that the law requires employers to take reasonable steps to prevent sexual harassment of their workers.
- State that harassment or victimisation may lead to disciplinary action up to and including dismissal.
- State that aggravating factors, such as abuse of power over a more junior colleague, will be taken into account in deciding what disciplinary action to take.
- Define sexual harassment and provide clear examples of it—examples should be relevant to your working environment and reflect the diverse range of people that harassment may affect.
- Include an effective procedure for receiving and responding to complaints of harassment.
- Address third-party harassment (such as by customers or service users).
As stated above, third-party harassment should also be covered within the sexual harassment policy.
The section addressing third-party harassment should explain clearly:
- That the law requires employers to take reasonable steps to prevent sexual harassment by third parties.
- That while an individual cannot bring a claim for third-party harassment alone, it can still result in legal liability when raised in other types of claim.
- That it will not be tolerated.
- That workers are encouraged to report it.
- What steps will be taken to prevent it.
- What steps will be taken to remedy a complaint and prevent it from happening again (for example, warning a customer about their behaviour, banning a customer, reporting any criminal acts to the police, or sharing information with other branches of the business).
The overall policy should also include a commitment to review the policy at regular intervals, monitor its effectiveness, and implement any changes that may be required.
It should also ensure it covers all business areas, including any overseas sites, subject to any applicable local laws.
Downloadable Sexual Harassment Prevention Policy
We have created a downloadable policy that you can integrate into your workplace/staff handbook, which covers the necessary legal requirements and guidance to ensure your business complies with the new regulations.
As well as ensuring there are clear policies and procedures in place, employers should also ensure staff, including managers and senior staff, are trained on:
- What sexual harassment in the workplace looks like.
- What to do if they experience or witness it.
- How to handle any complaints of harassment.
In industries where third-party harassment from customers is more likely, workers should also be trained on how to address these issues.
It is recommended that an employer review the effectiveness of any training and offer refresher sessions at regular intervals.
Not only does this help focus staff on the importance of this topic, but in the event an issue of sexual harassment occurs, being able to demonstrate that effective training is in place will assist an employer in being able to demonstrate that it has taken all reasonable steps to try to prevent this from occurring.
Engaging Staff
Simply implementing a policy will not be enough without effective follow-up actions to ensure its proper implementation.
For example, it would be advisable for an employer to conduct regular 1-2-1s, run staff surveys, and conduct exit interviews to help the organisation understand where any potential issues may lie and whether the steps it has already taken to prevent sexual harassment and victimisation are working or need to be reviewed.
Adopting a clear approach of having an 'open door policy' is advisable so that staff feel comfortable reporting such sensitive issues.
To ensure legal compliance in this area, all employers should ensure that all workers know where the relevant policy concerning sexual harassment is located, how they can make a complaint under this policy, and the consequences of breaching this policy.
Monitor and Evaluate Actions
It is important for an employer to regularly evaluate the effectiveness of the steps put in place to prevent sexual harassment in the workplace and implement any changes arising from that.
This will help ensure compliance with the preventative duty and protect staff from sexual harassment.
An employer could evaluate the effectiveness of the steps they have taken by:
- Reviewing informal and formal complaint data to see if there are any trends or particular issues and appropriate actions.
- Surveying staff anonymously on their experiences of sexual harassment, including whether they have witnessed or been subjected to harassment, whether they have or would in the future report it (and if not, why not), and what further steps they think the employer could take.
- Comparing reported complaints with survey feedback ensures that you have an accurate reflection of the level of sexual harassment in your workplace and take appropriate actions.
- Holding lessons-learned sessions after any complaints of sexual harassment are resolved.
You should also review policies, procedures, and training regularly to consider whether there have been any changes in the workplace or workforce that mean there are further steps that would now be reasonable for you to take.
It is important to seek input from workers or their representatives to consider whether any changes are needed.
These changes should then be implemented where appropriate
Ensure Compliance
Ensuring compliance with the new sexual harassment preventative duty is going to be complex.
Rather than managing the process alone, our team of consultants can do it for you.
We're offering a complete sexual harassment risk assessment service, including a thorough audit, a detailed risk assessment, and a comprehensive report outlining where improvements are needed.
The service is available for £795.00+VAT and is designed to help you meet legal requirements while helping to create a safer environment for your staff.
By opting for this service, you'll ensure your business complies with the new legal obligations and takes proactive steps to prevent sexual harassment in the workplace.
If you are interested in the audit and having Neathouse Partners conduct the risk assessment, please email James at jamesrowland@neathousepartners.com.
