From 26 October 2024, a new legal duty will be imposed on employers to take "reasonable steps" to prevent sexual harassment of employees in the course of their employment. This duty is introduced by the Worker Protection (Amendment of Equality Act 2010) Act 2023. Employers who fail to meet this duty may face an uplift of up to 25% on compensation awarded in sexual harassment claims brought after the Act comes into force. The Equalities and Human Rights Commission (EHRC) can also take enforcement action under its existing powers.
What constitutes "Reasonable Steps"?
The positive duty to take proactive reasonable steps will not be satisfied by a "one-size-fits-all" checklist of policies, training, and other standard steps. Factors such as the resources available to the employer, its size, sector, and working environment are to be considered when assessing compliance. The particular facts and circumstances of an incident will also form part of the assessment.
Key considerations for reasonable steps:
Resources and size: Larger employers with more resources will be expected to take more comprehensive steps.
Sector and environment: Different sectors may have unique risks and requirements.
Incident circumstances: The specific details of any incidents will influence what steps are deemed reasonable.
Initial steps for employers
The employer’s duty is anticipatory, meaning action should be taken ahead of an incident arising. A bespoke risk assessment, similar to those conducted for health and safety risks, will assist employers in establishing required actions. Initial steps include:
Collaboration: Senior managers and HR should document where staff might be exposed to sexual harassment.
Consultation: Speak to line managers and employee representatives to obtain their views on key risk areas.
Policy drafting: Create clear internal policies on dealing with sexual harassment, including definitions, reporting mechanisms, and complaint handling processes.
Training programmes: Develop mandatory training programs explaining the policy and new duty to all staff.
Communication protocols: Establish protocols to inform third parties of the company’s stance and policy on sexual harassment.
Ongoing compliance and review
Employers must ensure that the steps taken are not static but are regularly reviewed and updated. This includes:
Regular reviews: Timetable policy and training delivery and consider a schedule for regular reviews.
Ad-hoc updates: Update policies and training if new risks are identified or following an incident.
Documentation: Document all steps taken and reasons for steps considered but not taken.
Enforcement and penalties
Failure to comply with the new duty may result in significant financial and reputational risks. If an employee succeeds in a sexual harassment claim and the employer is found to have breached its duty, the tribunal can uplift compensation by up to 25%. The EHRC also has the power to investigate, issue unlawful act notices, and enter into legally binding agreements with employers to prevent future unlawful acts.
Additional considerations
Third-party harassment
While the Act does not reintroduce sexual harassment by third parties as a standalone claim, employers are still required to take reasonable steps to prevent such harassment. This includes harassment by customers, clients, service users, and members of the public. Failure to comply with this duty in relation to third parties could result in EHRC investigations and reputational damage.
Training and culture
Effective training is crucial. Training should be designed for different audiences within the business and regularly refreshed. Employers should also foster a culture where employees feel safe to report incidents and are assured that their complaints will be taken seriously and handled with empathy.
Risk assessments
Conducting thorough risk assessments is key. Employers should identify potential risks of sexual harassment and take steps to mitigate these risks. This includes considering factors like the presence of alcohol at events, lone working, and customer-facing duties.
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