26/10/2024 – Legal Duty To Actively Prevent Sexual Harassment

Worker Protection (Amendment of Equality Act 2010) Act 2023.

As of October 2024, every employer will have a legal duty to actively prevent sexual harassment at work. Given that:

• if the employer is shown to do nothing to prevent harassment, it’s liable, and the tribunal can bump up any compensation by up to 25%, or
• if the employer takes some reasonable steps to prevent harassment (e.g. has a anti-harassment policy), it’s still liable but no uplift will be applied to the compensation awarded.
• if the employer takes all reasonable steps, any claim would fail. Whether or not an employer has taken reasonable steps to prevent sexual harassment is an objective test, and will depend on the facts and circumstances of each situation.

Reasonable steps include:

Policies

These should clearly set out what constitutes sexual harassment and how it can be reported. However, policies alone will not simply suffice.

Training

This should be more than a tick-box exercise. Training should sit alongside and underpin the policies. The training should include:

1. 1. advising what staff witnessing sexual harassment should do,
   2. ensuring staff have a clear understanding of what harassment is and what behaviour is acceptable not only at the workplace but at work events and online. This includes covering what amounts to appropriate ‘banter’
   3. how complaints can be made, and
   4. how complaints will be handled.

Furthermore, managers and supervisors should have additional training.

Having a robust process in place for reporting complaints.

Ensuring there is a reporting register for complaints about all forms of harassment. This should allow for ongoing monitoring and prompt action to be taken to address re-occurring themes and then tailor the next training session accordingly. This register should ensure it is appropriate secure for data protection implications.

Carrying out risk assessments

The Equality and Human Rights Commission guidance on preventing workplace sexual harassment makes it clear that an employer is unlikely to be able to comply with the preventative duty unless they carry out a risk assessment.

The Equality and Human Rights Commission guidance has been updated to include an eight-step guide for employers on preventing sexual harassment at work.

In addition, Labour’s ‘New deal for working people’ also included a commitment to “create and maintain workplaces and working conditions free from harassment, including by third parties.” The guidance makes it clear that there is a re-introduction of employer liability for sexual harassment by third parties. We therefore recommend training should also include tailored advice on third party harassment if this is applicable to your work place (such as, in retail).