In our recent article, available here, we looked at some of the steps employers should consider taking to help ensure compliance with the Worker Protection (Amendment of Equality Act 2010) Act 2023. The Act comes into force on 26 October 2024 and will introduce a positive legal obligation on employers to take reasonable steps to prevent sexual harassment of their workers.
Since then, the Equality and Human Rights Commission (EHRC) has updated its technical guidance (available here), which makes it clear that the duty is an preventative duty, ‘designed to transform workplace cultures’. The ECHR has also produced a helpful 8-step guide (available here), to walk employers through the steps they should be taking to prevent and deal with sexual harassment of staff.
The technical guidance is very detailed, but some of the key points for employers to consider are:
- Risk assessments relating to harassment, sexual harassment and victimisation should take place. The guidance makes it clear that ’employers are unlikely to be able to meet the requirement of the preventative duty… if they do not carry out a risk assessment.‘ Assessments should identify the risks and the measures to be introduced to minimise those risks. General risk factors such as power imbalances, lone working, being placed on secondment etc. should be identified within the assessment. In addition, the assessment must include risks particular to the employer’s working environment, taking into account the employer’s working practices, policies and procedures. These assessments should be reviewed and updated regularly, and an action plan should set out what preventative steps will be taken to address identified risks and how that will be monitored.
- Well-communicated and effective policies should be in place, which aim to prevent harassment and victimisation. It’s best practice for the policies to be developed in consultation with trade unions/worker representatives. The guidance sets out in detail what a good anti-harassment policy should include, so this is essential reading for employers who are introducing/updating their policy. Staff should understand what harassment and sexual harassment is, what they should do if an incident happens, and what their employer will do when a complaint of harassment is made. Policies should include a commitment to being regularly reviewed in order to monitor effectiveness.
- Effective training should be in place so workers can identify the different types of harassment and victimisation, know what to do if they experience it and know how to handle complaints of harassment. Training should be tailored towards the nature of the employer, the target audience and the employer’s policies to maximise its impact. Training records should be kept up to date and refresher training should be provided at regular intervals. Additional training should be provided to managers/HR/’champions’.
It’s important to remember that the preventative duty only applies to sexual harassment, not harassment related to a protected characteristic, however, its wide enough to cover harassment by third parties (such as customers). One of the potential consequences of breaching the duty is the EHRC taking enforcement action against the employer. Further, whilst the new duty does not create a standalone claim that employees can bring in employment tribunals, it gives employment tribunals the power to increase compensation for successful sexual harassment claims by up to 25%. As such, failures in this area come with reputational and financial risks.
It’s possible that we will see further changes in this area – hopefully all will be revealed when the Employment Rights Bill gets published.
Should you wish to discuss how we can support your organisation in preparing for the upcoming changes, please do not hesitate to contact Lynsey Blyth.
