The implementation of the Worker Protection (Amendment of Equality Act 2010) Act 2023 will introduce significant obligations on all employers when it comes to dealing with sexual harassment in the workplace. While employers can already be held vicariously liable for acts of sexual harassment carried out by their employees, this legislation goes further and introduces a legal obligation on all employers to take reasonable steps to prevent the sexual harassment of their employees.
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Critically, this will apply to all employers, whether they have one worker or 1,000. The only variable will be what “reasonable” looks like, which will partly depend on the employer’s size.
Although there is no standalone right to bring a claim against an employer for failing to take such reasonable steps, this obligation will have real teeth. If an employee succeeds in a sexual harassment claim and the tribunal finds that the employer didn’t take reasonable steps, they can increase any compensation by up to 25%.
With awards for harassment already high, breach of this obligation is going to be financially costly. This is aside from any reputational damage that is likely to follow a successful claim, as well as a possible investigation from the Equality and Human Rights Commission (EHRC) or any other organisation that the new government puts in place.
So what are the reasonable steps that an employer should take? The EHRC’s updated guidance was due to be finalised in September. There is no one-size-fits-all approach. However, employers will need to avoid a generic tick-box approach to demonstrate they have taken reasonable steps.
Employers should carry out a review to identify risk in their business such as risks to lone workers, outside events or issues caused by interactions with third parties. Once that assessment has been carried out, a sexual harassment policy should be produced.
Read more: New EHRC guidance for employers on preventing sexual harassment
While a standalone policy is not required, given the focus of the new law, it should be considered in order to demonstrate compliance. Simply rehashing existing harassment policies is unlikely to be enough. Something more tailored needs to be put in place.
Employers will also need to ensure that they have an effective mechanism for employees to raise concerns and complaints; it shouldn’t be limited to those complaining they have been subject to harassment.
It should be clear that employees who witness colleagues being subject to such conduct should raise that with their employer. Larger employers will have to consider whether as part of the process, an anonymous reporting platform should be put in place.
Focus will have to be given to how complaints are investigated and dealt with once they are raised. Employers should look at both an informal and formal process.
Employers should keep a log of issues that are raised, and how those issues have been dealt with. Employment tribunals are likely to want to know an employer’s track record and just how seriously it takes complaints.
Training will also need to be reviewed. Employment tribunals will want to see that training is regular, relevant and refreshed. While there will still be a need to train all employees, there is going to be a need for focused training for cohorts, e.g. line managers, on how to deal with complaints when they are raised.
Employers should also consider how their approach to preventing sexual harassment is imposed. A top-down approach will be needed, with leaders driving a zero-tolerance stance.
Matt Jenkin is a partner at Herrington Carmichael
This article was published in the September/October 2024 edition of HR magazine.
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