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An employer’s duty to prevent sexual harassment

Employment

The Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force on 26 October 2024. It amends the Equality Act to create (a) a new duty on employers to take ‘reasonable steps’ to prevent sexual harassment of their staff, and (b) a power for the Employment Tribunal to uplift sexual harassment compensation by up to 25% where this duty is breached. The Equality and Human Rights Commission (EHRC) will have independent power to enforce the new duty and undertake its own investigations. Their powers are wide-ranging, and often accompanied by publicity.

What is the new duty?

The current law on sexual harassment places the onus on individuals experiencing sexual harassment to report incidents to managers and pursue a tribunal claim, rather than on employers to prevent harassment in the first place.

From 26 October 2024, employers will be required to proactively prevent sexual harassment of their staff, in the course of their employment, by taking preventative reasonable actions.

The Equality and Human Right Commission (EHRC) guidance issued in July 2024 makes it clear that this new duty extends to preventing sexual harassment by third parties, such as customers or clients.  

The new law is raising the bar, and employers will now be expected to take more proactive steps to prevent sexual harassment.

What can employers do to prepare?

  • Risk assessments – Employers should identify and mitigate risks in their specific workplaces to their staff, by considering the risk from all sources (including third parties). This may sensibly involve consulting with relevant staff representatives or carrying out a culture audit.
  • Issuing/Updating policies – Employers should also review their policies and procedures to ensure that they account for this new duty, and that they clarify expected behaviours and complaints mechanisms.
  • Training – Employers should implement regular training sessions (and periodic refreshers) across their organisation, to raise awareness to rights related to sexual harassment and to the employer’s policies. Recent tribunal caselaw indicates that training which is simply a tick-box exercise will not be sufficient. Training should be tailored to different groups within the organisation. For examples, specific training for those who manage and address allegations to support them in dealing with complaints.
  • Complaints channels – Employers should provide clear and accessible channels for staff to voice harassment concerns. If a member of staff raises a complaint of sexual harassment, this must be investigated promptly and thoroughly, so swift action can be taken to prevent any repetition of the behaviour.

It is imperative that employers put these measures in place, and we recommend that this is done before the date the legislation comes into force. We are able to advise you and assist with any of the above should you wish us to do so.

If you would like more information about the issues raised in this article or if you would like to amend your policies or deliver training to your staff, please contact us at 029 2034 5511 or employment@berrysmith.com.