On 26 October 2024, changes made to the Equality Act 2010 by the Worker Protection (Amendment of Equality Act 2010) Act 2023 (Worker Protection Act) will come into force. Therefore, from this date, employers will have a duty to prevent sexual harassment in the workplace.
The new legislation will:
- Introduce a new positive duty on employers to take reasonable steps to prevent sexual harassment of their employees – ie they must take proactive measures to seek to prevent sexual harassment from occurring in the workplace, before it actually occurs.
- Give Employment Tribunals the power to uplift sexual harassment compensation by up to 25% where an employer is found to have breached the new duty to prevent sexual harassment.
The Equality and Human Rights Commission (EHRC) has also published updates to its technical guidance on sexual harassment and harassment at work, which explains how employers can comply with the new duty, and also an eight step summary of the guidance.
Importantly, the draft EHRC guidance also states that the new duty requires employers to take reasonable steps to prevent the sexual harassment of their employees, not just by other employees, but also by third parties such as, customers, contractors and members of the public.
This update is noteworthy as it is the first time the EHRC guidance has included requirements about preventing third party harassment.
Although employees will not be able to bring a stand-alone claim for third party harassment under the Equality Act, the EHRC will have the power to take enforcement action against an employer if third party harassment occurs in the workplace in certain circumstances.
Given these new requirements, in order to stay compliant, employers should consider updating their sexual harassment policies to ensure they align with the new duties. Luckily, updating your policies doesn’t have to be complicated, and Employment Hero has done the hard work for you! Our updated sexual harassment policies are already available for you to access.
If you’re still feeling unsure about what these legislation changes mean for your business, fear not. In this blog we cover everything you need to know to stay compliant.
Recap: What is sexual harassment?
The definition of what constitutes sexual harassment is not changing under the new laws. Under section 26(2) of the Equality Act 2010 sexual harassment occurs where both of the following criteria are met:
- A person engages in unwanted conduct of a sexual nature; and
- The conduct has the purpose or effect of either violating the victim’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim.
It does not matter whether the perpetrator intended their conduct to have this effect or not, so long as it would have had this effect on a reasonable person.
Eight steps to follow to comply with the new duty
The eight steps mentioned in the EHRC summary to comply with the new duty to prevent sexual harassment are:
- Developing an effective anti-harassment policy
- Engaging with staff
- Assess and take steps to reduce risk in your workplace
- Reporting
- Training
- Handling harassment complaints
- Dealing with third-party harassment
- Monitoring and evaluating actions
Read on to find out more about each of the eight steps.
Step 1: Develop an effective anti-harassment policy
Having an effective anti-harassment policy in place is essential, however the way in which this is formatted is left to the organisation to decide. The guidance makes clear that employers can have either separate policies to deal with sexual harassment and other forms of harassment, or a single policy covering both.
It also details what should be included in an effective sexual harassment policy. To reflect the new laws, we have updated our Sexual Harassment Policy template.
Step 2: Engage your staff
Communication in the workplace is key and it is important to ensure that your employees feel comfortable discussing harassment of any kind. This is why the guidance states that employers should encourage an “open door policy” as well as conduct regular 1-2-1s, run staff surveys and exit interviews.These practices should encourage staff to discuss sexual harassment with management and allow employers to understand where any potential issues lie and whether the steps they are taking are working.
The new legislation also states that employers should make sure all workers are aware of:
- how they can report sexual harassment
- the workplace’s sexual harassment policy
- the consequences of breaching the policy
Step 3: Assess and take steps to reduce risk in your workplace
In order to reduce risk of sexual harassment in the workplace, the new laws state that employers should carry out risk assessments to identify areas of risk of sexual harassment occurring. Steps to minimise these risks should then be considered and put in place. It gives the following examples of factors to consider which might increase the risk of sexual harassment occurring:
- Where are the power imbalances?*
- Is there a lack of diversity in your workforce?
- Is there job insecurity for a particular group or role?*
- Are staff working alone or at night?
- Do your staff have customer-facing duties?
- Are customers or staff drinking alcohol?
- Are staff expected to attend external events, conferences or training?
- Do staff socialise outside of work?
- Do staff engage in crude or disrespectful behaviour at work?
*Power imbalances and lack of job security can lead to heighted risks of sexual harassment, for example, employees may be less likely to report sexual harassment where they fear doing so could mean they might lose their job or be adversely treated by their manager. Similarly, where managers have unlimited rights to hire, fire, promote and demote (without checks from other managers) it may mean they are more likely to be able to cover up harassment or put pressure on employees not to report this.
We recommend that a written record of risk assessments undertaken is kept, together with the steps you have identified to reduce the risks. These should be carried out regularly; this is particularly important when a new type of work is undertaken, employees are working in a new location or an event is coming up (eg a Christmas party).
The risk assessment should be reviewed periodically (e.g. in 12 months time) to assess whether the steps that have been put in place to address the risks are still effective. We have template risk assessment documents available for this purpose.
Step 4: Reporting
It is now recommended that employers consider using a reporting system, such as an online or independent phone-based service, that allows workers to raise an issue either anonymously or in name.
As part of the reporting system employers should keep centralised, confidential records of all concerns raised (whether raised formally or informally) to allow trends to be identified.
The guidance also states that employers should explain clearly to all workers:
- what is considered acceptable behaviour
- how to recognise sexual harassment
- what to do if they experience or witness it
Step 5: Training
Training and education play an essential part in reducing the risk of harassment in the workplace. According to the new guidance, all workers, including managers and senior staff, should be trained on:
- What sexual harassment in the workplace looks like
- What to do if they experience or witness it
- How to handle any complaints of harassment
In industries where third-party harassment from customers is more likely, the guidance states that workers should also be trained on how to address these issues.
Employers should review the effectiveness of any training and offer refresher sessions at regular intervals.
Step 6: What to do when a harassment complaint is made
In the event a harassment complaint is made, employers should: The guidance states that employers should:
- Act immediately to resolve the complaint, taking into account how the worker wants it to be resolved.
- Respect the confidentiality of all parties.
- Protect the complainant from ongoing harassment or being victimised during an investigation or complaint. For example, move the alleged harasser to another team or site. Employers should also protect witnesses of sexual harassment.
- If a worker makes a complaint of harassment that may be a criminal offence, the Employer should speak to the individual about whether they want to report the matter to the police and support them with this if they go ahead.
- Only use confidentiality agreements (also known as confidentiality clauses, non-disclosure agreements, NDAs, or gagging clauses) 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
New laws highlight that harassment by a third party, such as a customer, client, patient or supplier, should be taken just as seriously as that by a colleague. The EHRC recommends that employers should take steps to prevent this type of harassment, including putting reporting mechanisms in place and carrying out risk assessments in high-risk workplaces where staff might be left alone with third parties..
Other steps we suggest employers consider taking include:
- Developing a harassment policy to be issued to third parties which makes clear that such conduct is unlawful and will not be tolerated.
- Having an express term in all contracts with third parties notifying them of the employer’s policy on harassment and requiring them to adhere to it.
- Having public notices advising third parties that harassment of its employees is unlawful and will not be tolerated.
Step 8: Monitor and evaluate your actions
In order to ensure that measures put in place to prevent harassment are effective, the guidance indicates the importance of regular evaluation. Employers can assess the effectiveness of their policy by:
- Reviewing informal and formal complaints data to see if there are any trends or particular issues and establishing appropriate actions
- Surveying staff anonymously on their experiences of sexual harassment, including whether they have witnessed or been subjected to harassment, whether they have or would in the future report it (and if not, why not) as well as what further steps they think could be taken by the business
- Comparing reported complaints with survey feedback to ensure you have an accurate reflection of the level of sexual harassment in your workplace, and take appropriate actions
- Hold lessons-learned sessions after any complaints of sexual harassment are resolved
It also states that employers should review policies, procedures and training regularly, and seek input from workers or their representatives on these. It is also important to consider if any changes in the workplace, or workforce have taken place that may require additional measures to be put in place.
Need more help?
Staying compliant is complicated, especially when it is one aspect of a multitude of business functions. But Employment Hero can help to reduce the anxiety of staying compliant. Our HR Advisory service includes unlimited access to HR experts to guide you through the challenges of carrying out risk assessments, implementing measures to adhere to new legislation and dealing with harassment complaints.
Employment Hero’s HR Advisory also provides access to every HR document you will need such as employment contracts, workplace policies, and letters. We empower businesses to spend less time on admin and the stress of compliance, so they have more time to spend on what really matters – their people.
Learn more and speak to one of our specialists today.
