While employers and HR professionals are absorbing the extent of the new Government’s plans for Employment and Health & Safety laws, we would do well to remember the old Government also passed significant legislation. And one of these is shortly due to become law.
Background
The Worker Protection (Amendment of Equality Act 2010) Act 2023 introduces a new preventative duty for employers to prevent both sexual harassment and harassment at work, effective from 26th October 2024. Taking a preventative stance is an anticipatory duty meaning that employers should not wait until an incident of sexual harassment has taken place before they take any action. The duty requires that employers should anticipate scenarios when its workers may be subject to sexual harassment in the course of employment, and act to prevent such harassment happening. If sexual harassment has taken place, or the organisation has a known history of such incidents happening, then the preventative duty means an employer should act to stop sexual harassment from happening again. However, if an employer fails to take reasonable steps to comply with the preventative duty, there are consequences.
The EHRC has released draft technical guidance for consultation, which runs until 6th August 2024, with the final guidance expected in September 2024.
You still have time to take part if you feel strongly about it – Consultation page – EHCR
Definition of Sexual Harassment
Sexual harassment involves unwanted conduct of a sexual nature that violates dignity or creates a hostile environment. Being treated less favourably for submitting to or rejecting to such conduct is also harassment.
Current Employer Obligations
Employers are vicariously liable for harassment by their workers during employment, regardless of their knowledge or approval. They can defend claims by proving they took “reasonable steps” to prevent harassment. Individuals can also be personally liable.
Scope of Duty
The duty applies to preventing sexual harassment by both employees and third parties, such as contractors and clients. Failure to take reasonable steps to prevent harassment breaches this duty.
Reasonable Steps
Reasonableness varies by employer size, sector, working environment, resources, risks, third-party interaction, and likelihood of contact. No specific criteria or minimum standards exist, but examples of reasonable steps include:
- Policy: Define harassment and sexual harassment, outline disciplinary actions, and provide reporting procedures. Regularly update and remind staff.
- Training: Training is essential not just on harassment but bullying as well thereby ensuring Managers act and properly handle complaints. Regularly review and refresh training.
- Risk Assessment: Evaluate anticipatory harassment risks that may occur between employees and third parties. Implement control measures.
- Transparency Culture: Encourage workers to report concerns without fear of not being taken seriously.
- Clear Procedure: Establish a clear reporting and response procedure for harassment concerns.
- Zero-Tolerance Communication: Communicate a zero-tolerance stance on sexual harassment to third parties.
- Support: Direct workers to support organisations and Employee Assistance Programmes.
- Timetable: Create a timetable for regularly monitoring and reviewing training and policy updates.
Breach Consequences
Workers cannot bring claims for breaches, but can complain to the EHRC, which can investigate and take enforcement actions.
Employment Tribunals must consider compliance with the preventative duty when awarding compensation for harassment, potentially adding up to 25% to the compensation if the duty was breached.
Action Points for Employers
- Develop and update harassment and sexual harassment policies.
- Implement comprehensive training (and refresher) programmes on your equality and dignity at work policies, for both Managers and for employees.
- Undertake and document a sexual harassment risk assessment.
- Foster a reporting culture for unacceptable conduct of all types.
- Establish clear procedures for handling harassment incidents.
- Communicate zero-tolerance policies to third parties.
Finally, we are noticing an increase in employers receiving either informal or formal complaints about inappropriate conduct, not just in the workplace but in extensions of the workplace, such as at socials organised either formally by the employer, or informally by groups of employees. When alcohol is a feature in social settings there is a greater risk of incidents happening, so remember the workplace extends to these types of events as well.
BackupHR can provide a range of appropriate in person training for Managers and employees, which will demonstrate that the employer has taken a key reasonable step regarding the new preventative duty. While e-learning training modules are a quicker and cheaper option, but live interactivity with a trainer really helps to effectively improve learning especially when the training needs to teach people to understand and, if necessary, change their conduct. Being able to directly ask questions, participate in group activities and listen to their peers as part of the training process will make a real difference in reducing the risk of harassment and bullying incidents.
The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice.
