The Worker Protection (Amendment of Equality Act 2010) Act 2023, effective from 26 October 2024, mandates employers to take reasonable steps to prevent sexual harassment in the workplace. This new duty shifts the focus from merely addressing incidents after they occur to proactively preventing them. Employers must ensure their harassment and bullying policies are updated to reflect this proactive approach.
Although there is no official definition of "reasonable steps" for this new mandatory duty, it's likely that Employment Tribunals will refer to existing case law where employers have used reasonable steps as a defence in harassment claims. Considering this, employers should prioritise regularly updating policies, establishing employee representative groups, offering staff training and workshops, and actively promoting equal opportunities.
Policy updates
Clear definitions and scope
Define Sexual Harassment: Clearly define what constitutes sexual harassment, including examples of verbal, non-verbal, and physical conduct that could be considered harassment. This should align with the definition provided in the Equality Act 2010, which includes any unwanted behaviour of a sexual nature that violates an individual's dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment.
Scope of Policy: The new duty extends beyond preventing harassment among employees to include protection from third-party harassment, such as that from contractors, customers, suppliers, and members of the public. Although there is no standalone right for workers to bring claims for third-party harassment, the EHRC can enforce this duty, and employees may bring claims for constructive unfair dismissal or personal injury if they suffer due to harassment. Ensure the policy covers all employees, including workers and contractors, and applies to all work-related settings, including off-site events and social gatherings.
Proactive measures
Risk assessments: Conduct regular risk assessments to identify potential areas where sexual harassment could occur and implement measures to mitigate these risks. This includes assessing different roles and environments within the organization.
Training programmes: Implement comprehensive training programs for all employees, including managers, to educate them about sexual harassment, how to prevent it, and how to respond if it occurs. Training should be regular and updated to reflect any changes in the law or company policy. Keep records of attendance and the content of the training. Additionally, designate individuals responsible for monitoring and reporting on the measures in place to eliminate sexual harassment
Reporting and response mechanisms
Reporting procedures: Establish clear, confidential, and accessible reporting procedures for employees to report incidents of sexual harassment. This should include multiple reporting channels to ensure employees feel comfortable coming forward.
Investigation process: Outline a thorough and impartial investigation process for handling complaints of sexual harassment. Ensure that all complaints are taken seriously and investigated promptly and fairly.
Monitoring and review
Policy circulation and awareness: Regularly circulate the updated anti-harassment policy to all employees and ensure they acknowledge understanding it. This can be done through email, company intranet, or during training sessions.
Regular reviews: Conduct regular reviews of the anti-harassment policy to ensure it remains effective and compliant with current laws. This includes updating the policy based on feedback from employees and any incidents that have occurred.
Additional considerations
Third-party harassment: As noted earlier, although the Act does not reintroduce liability for third-party harassment, employers should still consider measures to protect employees from harassment by clients, customers, or other third parties. This can include visible signs in customer-facing areas and clear procedures for employees to report third-party harassment.
Compensation uplift: Be aware that if an employer is found to have breached the duty to take reasonable steps to prevent sexual harassment, an Employment Tribunal can increase compensation awards by up to 25%. This underscores the importance of taking proactive and effective measures.
By implementing these changes, employers can ensure they are compliant with the new legal obligations and create a safer, more respectful workplace environment.
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