Employers will soon be under a new mandatory duty to take ‘reasonable steps’ to prevent sexual harassment of their employees in the course of their employment.
The Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force on 26 October 2024. This also gives employment tribunals the power to uplift a worker’s compensation by up to 25% where an employer is found to have breached the new preventative duty.
The preventative duty is ‘anticipatory’ in nature: The duty to take reasonable steps to prevent sexual harassment (SH) is an ‘anticipatory’ duty, so employers are required to anticipate scenarios when
workers may be subject to SH in the course of their employment and take action to prevent harassment taking place.
The duty also extends to harassment by third parties: The duty requires employers to take ‘reasonable steps’ to prevent SH of their workers in the course of their employment. This extends not only to SH by other workers (i.e. managers, colleagues), but also the prevention of sexual harassment by third parties (e.g. customers, clients, friends and family of colleagues, delegates at a conference or the public). Employers should therefore consider the risk of workers encountering third parties and of SH occurring in different situations and take reasonable steps to prevent it.
‘Reasonable steps’ will vary: This is an objective test and what preventive steps are ‘reasonable’ will depend on factors such as; the size of the employer and its resources, the sector, the risks present, and the third parties workers employees may have contact with. In deciding whether a particular step is ‘reasonable’, an employer should consider its likely effect and whether an alternative step could be more effective.
Risk assessments are encouraged: an employer should consider conducting risk assessments which list the identified SH risks arising from employees or third parties, record possible options to mitigate those risks, outline any implementation costs, consider the likely success of the interventions being successful, and record the steps the employer ultimately decides to implement.
EHRC enforcement powers: The EHRC has the power to take enforcement action where an employer has failed to comply with the new preventative duty. Importantly, exercising those powers ‘does not depend on any incident of sexual harassment having taken place’. Among other powers the EHRC is able to investigate, to issue an unlawful act notice, to enter into a legally binding agreement with an employer to prevent future unlawful acts.
Up to 25% uplift for failure to take reasonable preventative steps:
An employment tribunal will consider the EHRCs guidance when deciding whether an employer has complied with its preventative duty and can uplift compensation by up to 25% it decides that there has been a failure to take reasonable preventative steps.
Common examples of SH include in-person (and virtually):
■ Engaging in physical behaviour that is sexual in nature
■ Making sexual comments or jokes
■ Looking, staring or leering
■ Making propositions or sexual advances
■ Displaying sexually graphic photos
■ Asking intrusive questions about someone’s private or sex life.
Note that SH can also occur when the conduct comes from someone of the same or a different sex. A further example is where a manager denies a team member’s promotion because the team member turned down the manager’s sexual advances.
The actions of the harasser are also likely to amount to workplace misconduct, which will need to be addressed in parallel with the SH investigation.
Get compliant!
The ECHR’s guidance states that the new duty is likely to be met if an employer has:
■ A clear and effective reporting systems
■ Effective anti-harassment policies
■ Employee training (inc. active bystander)
■ A zero tolerance culture
■ Conducted risk assessments
■ Regular communications.
Next Steps
ourHRpeople has teamed up with www.iReport.work to offer our readers and their networks a comprehensive compliance package – Protect Elite – at just £399+vat with a small monthly
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■ Robust HR policies (Anti-discrimination, harassment and bullying, Equal opportunities and a
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OurHRpeople legal and HR specialists are here to assist with implementation, legal advice related to reported incidents and to undertake investigations (however complex), all at a discounted rate.
Exclusive offer!
We are offering iReport 24/7 reporting via Talk to Spot free for 3 months when companies sign up before the compliance deadline of 26 October 2024.
Monthly subscription:
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Please see www.ireport.work/pricing/ for full details.
For further details on our HR and employment law services, please contact steve@ourhrpeople.co.uk.
