On 26th October 2024, The Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force. The Equality and Human Right Commission have just this week updated their guidance to help employers understand their duties.
The Act puts a positive legal duty on the employer, which means you must take proactive steps to prevent sexual harassment in the workplace. This includes all employees, workers, apprentices and those connected to the business including job applicants and other contracted staff such as agency workers and ex-employees.
Whilst the Act doesn’t specify a right for an employee to raise a tribunal claim due to sexual harassment by a third party, the EHRC’s guidance states that employers must consider third parties as part of their preventative duty and the EHRC can take action if a claim is raised which means this guidance will be considered as part of their investigation.
A tribunal claim cannot be raised for not taking preventative action alone however, if a sexual harassment tribunal claim is successful, a lack of proactive steps to prevent sexual harassment, even if it would not have stopped the harassment taking place in this situation, will be considered. An award could be increased by up to 25% where an employer is found not to have taken reasonable steps.
It is important to note that for all bullying and harassment scenarios and in this case, sexual harassment, one incident of harassment is enough for an employee to raise a complaint or a claim and therefore not knowing about an issue cannot be used as a defence.
The starting point for an employer as per the guidance is to carry out a risk assessment and consider where, who by and to who, sexual harassment could take place. Once this risk assessment has been carried out, the following steps need to be considered:
- What are the risks: review different roles, different locations, types of work
- What steps could be taken to prevent sexual harassment occurring: this includes all steps whether reasonable or not
- Which of these steps are reasonable steps for your business to take. Base this on time, cost and disruption to the business
- Implement those reasonable steps.
Whilst the Act and the guidance don’t specify exactly what you should be doing as this is unique to each business, there is an 8-step guide to preventing sexual harassment. A summary of these 8 steps are as follows:
- Develop an effective anti-harassment policy: Whilst our clients have a harassment policy, it is a good time to read through and make sure this is relevant to your business and that you are up to speed with your requirements
- Engage with your staff: Make sure employees are aware of the policies in place including how to report sexual harassment
- Assess and take steps to reduce risk in your workplace: This gives more guidance for your risk assessment in what areas to consider
- Reporting: Consider your reporting procedures and how to identify training needs or changes in processes
- Training: Training for managers and supervisors is important to understand what sexual harassment is, what to do if they identify it and how to handle complaints
- What to do when a harassment complaint is made: Make sure you are clear as to how to manage complaints, act as quickly as possible and of course it’s important to manage confidentiality
- Dealing with harassment by third parties: Consider steps to prevent sexual harassment by a third party
- Monitor and evaluate your actions: You are required to regularly review your preventative action towards sexual harassment and make sure training etc is kept up to date.
As with all changes to legislation, we will not know how the tribunal system will interpret the guidance until this is tested by law. We also appreciate and are committed to ensuring that none of our clients become the example.
We would therefore encourage everyone to read through the additional guidance and consider what would be the reasonable steps in your business to demonstrate that you have been proactive in your approach to preventing sexual harassment from occurring within your workplaces or to any of your stakeholders.
The HR consultants are on hand to chat through any queries you have or if you would like to chat through any measures that you are thinking of putting into place.
