Further to our update in April on the new duty to prevent sexual harassment (now enacted by section 40(A) of the Equality Act 2010 (“EqA”)), we are fast approaching the changes coming into force on 26 October 2024. To recap, employers will have an express obligation to take ‘reasonable steps’ to prevent sexual harassment of their employees.
On 26 September, the Equality and Human Rights Commission (“EHRC”) published its updated technical guidance following a consultation on proposed amendments (“Technical Guidance”). The purpose of the Technical Guidance is to provide further detail on employers’ legal obligations to take reasonable steps to prevent sexual harassment of their workers. By taking practical steps outlined in the Technical Guidance, employers will be able to “transform workplace cultures”. Critically, the Technical Guidance provides that an employer is unlikely to be able to comply with the preventative duty unless they carry out a risk assessment.
In addition, the EHRC has also published a supplementary eight-step guide for employers, which summarises the detail in the Technical Guidance itself. We have summarised these steps below, along with some practical guidance to assist employers with the new duty:
- Step 1: Develop an effective anti-harassment policy:
- Ensure anti-harassment, bullying and speak-up policies and procedures are up to date and easily accessible (you may want to recirculate these);
- Ensure policies focus on inclusion as well as equality;
- Include in the policy a commitment to review the policy at regular intervals, monitor its effectiveness and implement any changes that may be required;
- Clearly explain in the section addressing third party harassment:
- that the law requires employers to take reasonable steps to prevent sexual harassment by third parties;
- that while third-party harassment is not a standalone claim, it can still result in legal liability when raised in other types of claim;
- that it will not be tolerated and that workers are encouraged to report it;
- what steps will be taken to prevent it; and
- what steps will be taken to remedy a complaint and prevent it from happening again.
- Step 2: Engage your staff:
- Conduct regular 1:1s, run staff surveys and exit interviews, and have open door policies (and use these 1:1s to help understand any potential issues and areas for improvement);
- Educate staff on what constitutes sexual harassment and maintaining a respectful workplace;
- Ensure all staff are aware of how to report sexual harassment, your sexual harassment policy and consequences of a breach;
- Consider if any measures are needed to encourage an inclusive culture.
- Step 3: Assess and take steps to reduce risk in your workplace:
- Targeted risk assessments – consider the work environment and factors that might increase the likelihood of sexual harassment (e.g. power imbalances, lack of diversity in the workplace, lone working at night, customer-facing duties, existence of alcohol and social activities in the workplace, whether crude/disrespectful behaviour is tolerated);
- Take appropriate steps to mitigate any identified risk(s).
- Step 4: Reporting:
- Implement a clear complaints recording procedure and make sure it clearly stipulates to whom a report should be made (and set out an alternative if the complaints recipient is the harasser);
- Consider using a reporting system (such as an online or independent telephone-based service) that allows workers to raise an issue either anonymously or in name;
- Ensure complainants are made aware of support available (both internal and external);
- Keep centralised, confidential records of all concerns raised, formal and informal. This enables trends to be identified.
- Step 5: Training:
- All workers should be trained on what sexual harassment in the workplace looks like, how to respond if they experience or witness it and how to handle complaints of harassment;
- Refresher training for all staff – consider additional training for senior managers/HR professionals or where third-party harassment from customers is more likely;
- Allocate funds in training budgets;
- Implement processes for reviewing the effectiveness of policies/training;
- Establish timetables for refresher training.
- Step 6: Immediate steps when a harassment complaint is made:
- Act immediately to resolve it, taking into account how the workers wants it to be dealt with;
- Respect confidentiality of all parties;
- Consider what protections are needed for the complainant or witnesses;
- Consider whether a police report is required and discuss this with the complainant;
- Only use confidentiality agreements where it is lawful, necessary and appropriate to do so;
- Always communicate the outcome of the complaint and outline any appeals process to the complainant in a timely manner.
- Step 7: Dealing with harassment by third parties:
- Third-party harassment should be treated just as seriously as that by a colleague;
- Employers should take steps to prevent this type of harassment, including putting reporting mechanisms in place or assessing high-risk workplaces where staff might be left alone with customers.
- Step 8: Monitor and evaluate your actions:
- As noted above, employers should regularly evaluate the effectiveness of existing measures (including policies and procedures) to prevent sexual harassment in the workplace. This may include:
- reviewing formal and informal complaints data to identify trends;
- conducting anonymous surveys on staff experiences of sexual harassment;
- comparing this data to ensure the business has an accurate picture of the level of sexual harassment in the workplace and take action as required; and
- conducting lessons-learned sessions after any complaints of sexual harassment are resolved.
- Seek feedback from workers, staff networks and trade unions to see if further changes are needed.
- Remember: this is an ongoing duty and will require regular review and input to ensure any changes in the workplace are effectively risk managed.
- As noted above, employers should regularly evaluate the effectiveness of existing measures (including policies and procedures) to prevent sexual harassment in the workplace. This may include:
The Technical Guidance notes that what is “reasonable” will vary from employer to employer and will depend on factors such as (but not limited to) the employer’s size, sector and available resources, the nature of the workplace, the risks present in that workplace, the types of third parties workers may come into contact with and the likelihood of workers coming into contact with such third parties. Other factors that may be relevant include the time, cost and potential disruption of taking a particular step, weighed against the benefit it could achieve, whether concerns have been raised with an employer that sexual harassment has taken place, compliance with any relevant regulatory standards (e.g., FCA or General Medical Council standards), and whether steps taken appear to have been effective or ineffective. Whether or not an employer has taken reasonable steps is an objective test and will be assessed on a case by case basis.
In addition, the Technical Guidance has outlined some key principles to keep in mind with regards to the duty, namely that it:
- is a preventative and anticipatory duty;
- is different from the reasonable steps defence for harassment. It is a separate positive legal duty that requires employers to take reasonable steps to prevent sexual harassment of their workers (however, the Technical Guidance does not go into detail as to how different it is);
- only applies to sexual harassment (and does not cover harassment related to another protected characteristic (including sex) nor does it apply to less favourable treatment for rejecting or submitting to unwanted conduct); and
- includes prevention of sexual harassment by third parties (e.g. customers, clients, service users, patients, friends and family of colleagues, and more…).
In the event an employee succeeds in bringing a separate sexual harassment claim under section 26(2) of the EqA, the Employment Tribunal will then have the power to uplift compensation by up to 25% if there has been a breach of the new duty to prevent sexual harassment. In addition, the EHRC will have enforcement powers under the EqA for non-compliance, including conducting investigations, issuing unlawful act notices, entering into binding agreements with employers to prevent future unlawful conduct and obtaining injunctions. Importantly, the Technical Guidance has clarified that the preventative duty does not depend upon an incident of sexual harassment taking place to be enforceable by the EHRC.
Employers should familiarise themselves with the Technical Guidance and Eight-Step Guide as it is likely that an Employment Tribunal will see compliance with the EHRC guidance as compliance with the duty.
Please feel free to get in touch with us if you require any training, support or guidance on the changes.