From 26 October this year, employers will be under a new legal duty to take reasonable steps to prevent sexual harassment of their workers in the course of their employment. It’s an anticipatory duty, meaning that employers should take proactive steps to prevent sexual harassment, and they shouldn’t wait for a worker to make a complaint.
If an individual brings a successful claim for sexual harassment and the employer has breached the duty, the employment tribunal will be able to increase the employee’s compensation by up to 25%. The Equality and Human Rights Commission (EHRC) will also have the power to take enforcement action, so it’s important that employers prepare for the change in the law.
To help employers, the EHRC has published updated technical guidance and an eight-step guide for employers. Here’s a summary of the key points:
Updated technical guidance
This sets out the steps employers can take to prevent sexual harassment in the workplace. It includes examples to illustrate how the duty will work in practice.
The guidance recommends that employers:
- Undertake regular risk assessments to identify where sexual harassment may occur and the steps they will take to prevent it. The guidance makes it clear that an employer is unlikely to be able to comply with the duty unless it carries out a risk assessment. The risk factors an employer should consider include homeworking, external training, social events, social media, and workplace cultures that allow sexist banter
- Develop and widely communicate a robust anti-harassment policy, which includes third party sexual harassment (eg customers, clients, patients and suppliers). However, it makes it clear that a worker cannot bring a stand-alone claim in the employment tribunal for third party harassment
- Be proactively aware of what is happening in the workplace and any warning signs by engaging with staff through individual meetings, surveys and exit interviews
- Monitor and evaluate how effective their actions are.
The guidance lists factors that may be relevant in deciding whether a step is reasonable. What is reasonable will vary from employer to employer but the factors may include the size and resources of the employer, the nature of the working environment, the sector the employer operates in and the nature of any contact with third parties.
Eight-step guide for employers
This sets out the non-exhaustive practical steps an employer can take to prevent and deal with sexual harassment in the workplace. The steps are:
- Develop an effective anti-harassment policy, which reflects the new law, includes relevant examples of sexual harassment and covers third party harassment. Review the policy regularly
- Engage staff by conducting regular 1-2-1s, running staff surveys and exit interviews, and having an open-door policy
- Assess and take steps to reduce risk in the workplace
- Consider using a reporting system that allows workers to raise an issue anonymously, and keep records of any concerns raised
- Train workers, including managers and senior staff, and offer regular refresher sessions
- Deal with complaints promptly
- Deal with harassment by third parties
- Monitor and evaluate the effectiveness of the steps taken.
If you’d like more information on the new duty, check out our new HR Moments podcast below.
If you have any questions on this article or what the new duty means for your organisation, please get in touch with Hilary du Randt or Gearalt Fahy.
If you want to hear more from the team on all things employment law and how they impact HR, be sure to sign up for our updates.
