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If you don’t know or are not sure, your business may not be ready to comply with the new legal duty to be introduced on 26 October 2024.
What the current law says
Under the current law, employers can be held legally liable for harassment caused by its workers under the Equality Act 2010, unless it can be demonstrated all reasonable steps to prevent those acts have been taken.
What the new law says
The new law is intended to supplement this existing law and is designed to get employers to look at their workplace culture, take preventative measures and have a clear approach to responding to sexual harassment, if it occurs; it does not apply to harassment relating to other protected characteristics.
The Worker Protection (Amendment of the Equality Act 2010) Act 2023 covers this new duty and requires employers to take “reasonable steps” to prevent sexual harassment of their employees in the workplace.
The legislation unhelpfully does not explain “reasonable steps”. However, what is “reasonable” will be an objective test and will vary from business to business with relevant factors being:
the size of the business;
resources available to the employer;
the sector in which the business operates;
the work environment; and
the type of risk potentially present in the workplace.
Guidance for Employers
To help employers navigate the new law, the UK Equality and Human Rights Commission (“EHRC”) has published guidance comprising of:
Sexual harassment and harassment at work: technical guidance (“Technical Guidance”); and
“Employer 8-step guide: Preventing sexual harassment at work”.
Both documents can be found on the EHRC’s website.
EHRC 8-Step Guide
The Employer 8-step guide recommends the following eight (non-exhaustive) steps that an employer should take:
Step 1 → Develop an effective anti-harassment policy
Current policies and procedures should be reviewed and consideration should be given to creating an effective anti-harassment policy, which deals with sexual harassment. Regular reviews will be important to ensure compliance. Any existing anti-harassment policy or grievance procedure is unlikely to be sufficient.
Step 2 → Engage with staff
Strong staff engagement will ensure issues can be identified and addressed effectively. Any engagement should involve an ongoing programme of communication to ensure staff understand what type of behaviour is not tolerated, how to report sexual harassment, what the business’ policy is and the consequences of breaching the policy. The underlying message at all times should be that there is a zero-tolerance approach to sexual harassment.
Step 3 → Assess and take steps to reduce the risk in the workplace
Key to manging the risk is undertaking a risk assessment. The outcome of the risk assessment will set the platform from which policies and procedures can be developed, areas for improvement with regard to workplace culture can be identified and preventive measures can be introduced.
Step 4 → Introduce a reporting system
Employers should consider a reporting system that could be on-line or an independent telephone service, which allows individuals to raise issues anonymously or in name. Staff will need to be told how to use the system and records should be retained on a confidential basis.
Step 5 → Implement a training programme
All staff should be trained on sexual harassment in the workplace so that they know what it looks like and how to raise a complaint. Managers and supervisors must also be trained on how to handle complaints, including those relating to third parties. Training should be regularly reviewed and updated.
Step 6 → Know how to handle complaints
Action should be immediate; complaints should be treated in confidence and consideration should be given to what protection the complainant might require from ongoing harassment or victimisation. It is also important to ensure that internal procedures are complied with in terms of providing an outcome and offering the right of appeal, where necessary.
Step 7 → Deal with harassment by third parties
Although harassment by third parties is not prohibited under the Equality Act 2010, the EHRC is clear that the preventative duty extends to this type of harassment. Complaints arising from the behaviour of third parties, such as customers, clients or suppliers should be treated with the same level of seriousness as complaints raised about colleagues. The risk assessment may assist to identify if there is a substantial risk from harassment by third parties and what preventative measures may need to be introduced.
Step 8 → Monitor and evaluate how effective the preventative action has been
As this is a positive and ongoing obligation, this step is essential to demonstrate compliance and to protect staff. Monitoring and evaluation should include consideration of the complaints record, feedback from staff, areas for improvement and whether policies and procedures need to be amended to reflect changes in the business.
What else to look out for?
The eight steps alone give employers much to get to grips with but there is more:
While the Technical Guidance and the Employer 8-step guidance are not binding on a tribunal if a complaint is made, the tribunal is likely to have regard for both when deciding if an employer has satisfied its new obligation. It is therefore important employers recognise the relevance of both documents.
An employment tribunal has the power to uplift discrimination compensation by up to 25%, if it is found that an employer has breached the new duty to prevent sexual harassment. Discrimination for financial loss is uncapped.
The preventative duty is likely to become stricter. The government plans to increase employers’ obligations, so that they must take “all” reasonable steps to prevent sexual harassment in the workplace; and liability for third party harassment will in future sit with the employer.
The EHRC has powers to take enforcement action against an employer in breach of its duty, undertaken investigations, issue unlawful act notices and enter into a legally binding agreement with an employer to prevent future unlawful acts. Employers may have to address these issues in addition to responding to a tribunal complaint.
Legal risks
Employers who do not address this legal duty proactively with an ongoing programme of review and action are at risk of sexual harassment complaints and the workplace coming under external scrutiny. While the administrative and operational burden may feel heavy, this has to be weighed against the cost of potentially uncapped discrimination compensation with a possible 25% uplift and reputational damage in the case of a successful claim.
How we can help
At FG Solicitors we can help reduce this burden and provide support and guidance on managing your business’ risk profile with our auditing, risk assessment and anti-harassment training service.
Contact FG Solicitors today on 0808 172 93 22 or complete our quick contact form for a no obligation discussion!
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This update is for general guidance only and advice should be taken in relation to a particular set of circumstances.
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