By Jo Seery Professional Support Lawyer
We reported in an earlier ELR on the new duty on employers to take reasonable steps to prevent sexual harassment in the workplace which comes into force on 26 October 2024.
What is sexual harassment?
Sexual harassment is defined in the Equality Act 2010 as “unwanted conduct of a sexual nature which has the purpose or effect of violating a worker’s dignity or creating an intimidating, hostile degrading humiliating or offensive environment for the worker”.
Who does the new duty mean in practice?
The duty is a positive one which means that it applies to all employers irrespective of whether or not complaints of sexual harassment have been made.
In fact, the Equality and Human Rights Commission (EHRC) technical guidance on ‘Sexual harassment and harassment at work’ which has been updated in light of the new duty, states that “Employers should not wait until an incident of sexual harassment has taken place before they take any action”. The guidance also states that the duty to prevent applies to a duty to prevent to prevent sexual harassment by clients and customers.
The technical guidance sets out detailed steps employers are expected to take to comply with the duty and summarised in the EHRC Employer 8 Step guide (see box below).
What is clear is that simply having an anti-sexual harassment policy and providing training in the policy is not enough. Paragraph 4.13 of the technical guidance states that Employers are unlikely to be able to meet the requirement of the preventative duty to take reasonable steps to prevent sexual harassment of their workers if they do not carry out a risk assessment. Employers are expected to adopt the same approach when assessing risks to health and safety. It is not a one-off exercise and there should be effective monitoring and reporting systems in place in order to record incidents and analyse trends.
The technical guidance is useful for Unions to check employers are complying with their duty and consult with them on the preventive measures needed to reduce the risk of sexual harassment in the workplace.
EHRC 8 Step guide for employers
| Step 1 | develop an effective anti-harassment policy |
| Step 2 | engage your staff |
| Step 3 | assess and take steps to reduce risk in your workplace |
| Step 4 | reporting |
| Step 5 | training |
| Step 6 | what to do when a harassment complaint is made |
| Step 7 | dealing with harassment by third parties |
| Step 8 | monitor and evaluate your actions |
Proposals for reform
More change is on the way. The Employment Rights Bill laid before Parliament on the 10 October will introduce more measures to protect workers by:
- Extending the scope of the preventative duty by requiring the employer to take all reasonable steps to prevent sexual harassment in the workplace. This would bring the duty into line with the “statutory defence” and which case law has held amounts to a higher standard.
- Introducing a power on the Secretary of State to set out in regulations what steps will be regarded as “reasonable” for an employer to take and the matters an employer is to have regard to when taking those measures.
- Making employers liable for harassment related to all protected characteristics e.g. age, disability, gender reassignment, race, religion or belief sex and, sexual orientation by a client or customers where the employer has failed to take all reasonable steps to prevent it.
- Making sexual harassment a specified protected disclosure and so protect them from being subject to a detriment for having made an allegation of sexual harassment under the whistleblowing provisions.
Good employers should be consulting with Unions now on how they propose to me their duties both now and in the near future.
