New duty to prevent sexual harassment in the workplace
In today’s rapidly evolving work environment, creating a safe and respectful working environment is more crucial than ever.
Pending any changes following the general election, the Worker Protection (Amendment of Equality Act 2010) Act will come into effect on 26 October 2024, strengthening protections against sexual harassment for workers. In anticipation of this, the EHRC has launched a consultation to update its technical guidance on the new duty, with the consultation period ending on 6 August 2024. We examine the upcoming enhancements and suggest how employers can prepare for compliance in the months ahead.
Understanding the new duty
This new law will impose a duty for employers to take ‘reasonable steps’ to prevent sexual harassment. Tribunals will have the power to increase compensation by up to 25% if there is a successful sexual harassment claim and the employer has breached this duty. Employers are required to adopt a proactive approach, addressing potential issues before they arise rather than reacting to incidents after they occur. Compliance with this law is not just about avoiding legal repercussions; it’s about fostering a culture of respect and inclusion, which can enhance employee satisfaction and productivity.
However, not everyone believes the new duty has gone far enough. They point out that the requirement for employers to take ‘reasonable steps’ falls short of ‘all reasonable steps’ and the omission of an express duty to protect workers against harassment by third parties. The Chartered Institute for Personnel and Development (CIPD) has also voiced concerns regarding the efficacy of the new duty but acknowledges the importance of this legal change in building awareness and encouraging compliance.
Key steps
In preparation for the new duty, there are some key steps employers can take to ensure compliance.
- Staff listening exercise: Conduct a feedback activity to capture common themes, experiences, and to help identify areas of focus.
- Risk assessment: Where the organisation identifies areas of risk and plans how these will be mitigated – this will help inform the “reasonable steps” to be taken.
- Build awareness: The first step is to increase awareness regarding what constitutes sexual harassment and educate their workforce. Few employees will appreciate that harassment can include unwanted conduct related to a protected characteristic, creating an intimidating, hostile, degrading, humiliating or offensive environment. Even fewer will be aware that sexual harassment specifically involves unwanted conduct of a sexual nature with that impact. Regular training sessions should be provided to all staff which should include how to raise a concern and how sexual harassment will be addressed.
- Organisational and Cultural Change: Senior leaders must act as role models for inclusive values and behaviours. Their influence as ambassadors for the organisation both internally and externally is crucial in fostering a respectful culture of both physical and psychological safety.
- Develop your Policy: While policies alone will never suffice to effect cultural change, it is useful to have a clear written framework defining what constitutes sexual harassment and making clear how sexual harassment will be addressed.
- Upskill your managers: Specific training for managers on how to tackle sexual harassment should be provided, including how to support any team members who are impacted.
- Identify and promote your reporting channels: Confidential and accessible routes to report concerns relating to sexual harassment should be widely advertised. The organisation should always ensure they are clear that sexual harassment is unacceptable, and any concerns will be treated seriously and with sensitivity.
- Timely Investigation: Employers should investigate sexual harassment claims thoroughly and in a timely manner. We recommend investigations should be completed by someone appropriately trained, without direct connection to those involved. Depending on the circumstances, appointing an external independent investigator can be beneficial to ensure impartiality.
- Support: Providing support to those impacted is critical. This support can include counselling support, adjustments to work arrangements, or temporary leave if necessary.
- Review your progress: Monitoring gender diversity, complaints, as well as seeking input on the wider experiences of your teams via engagement exercises can help to shine a light on the impact of any steps taken to prevent sexual harassment. You should regularly analyse these sources of information and take action on any learning.
The new duty to take reasonable steps to prevent sexual harassment in the workplace provides an opportunity for employers to reflect upon their organisational culture. Legislation alone will not create change; it will be up to individual employers to assess their starting point and take proactive steps to improve their current approach to the prevention of sexual harassment in the workplace.
