THE BACKSTORY
It’s now over six months since it became a legal duty for employers to take reasonable steps to prevent sexual harassment of their employees.
From 26 October 2024, the Equality Act 2010 was expanded to strengthen protection of workers from sexual harassment in the course of their employment.
Prior to last year’s change, there was already provisions in place; sexual harassment was already unlawful. Employers could mitigate or avoid liability if they could demonstrate they had taken reasonable steps, but these changes have made it a legal duty and not just best practice.
WHAT IS SEXUAL HARRASMENT?
A starting point for employers is to ensure they fully understand what sexual harassment is and it’s set out clearly here on the ACAS website.
Sexual harassment is unwanted behaviour of a sexual nature which has violated someone’s dignity and / or created an intimidating, hostile, degrading, humiliating or offensive environment for them.
It’s important to note that it can still be sexual harassment if it had the above effect, even if it was not intended, or, if it was intended, but didn’t have the above effect.
Sexual harassment can be a one-off incident, or a continued pattern of behaviour.
Whilst it’s true that most victims of sexual harassment are women, anyone can be subject to sexual harassment – regardless of gender or sexual orientation. And equally, it can be carried out by anyone of any gender, or sexual orientation.
Sexual harassment can be physical – unwanted touching of any kind (including hugging), sexual assault or rape, but it can also be remarks, comments, jokes, questions, sharing of sexual content or images.
Sexual harassment can take place in person, but also in writing or online. It’s also not limited to within working hours, events linked to work – such as a conference, leaving drinks or a Christmas Party all would be classed as within scope.
Sexual harassment can often be directed at one person or a few individuals, but not always. Complaints can arise where there is a culture of behaviour such as displaying or sharing sexual images between staff. What one person may consider banter, could be deemed sexual harassment by another.
WHO NEEDS TO BE PROTECTED?
When employers are considering what reasonable steps look like for their operation, it’s important to consider all the following categories of people, not just limited to your employees:
Employees and workers (including any temporary workers engaged through an agency)
Contractors and self-employed people hired personally to do the work
Job applicants
The duty requires employers to take reasonable steps to protect the above people from everyone that they may come into contact with in the course of their employment – colleagues, managers, and third parties – clients, customers or the general public.
WHAT ACTIONS DO EMPLOYERS NEED TO TAKE?
Since October 2024, Employers now have a preventative duty. The idea is that employers consider how sexual harassment could occur in their workplace and be pro-active in taking reasonable steps to prevent it.
This duty applies to all employers, regardless of size and turnover.
There is no prescriptive guide on what the reasonable steps should be – this needs to be decided in-house, considering all the specific factors which apply to the individual workplace, including the existing workplace culture. It will look different for everyone; the critical factor is that action is taken.
Employers should be clear, however, that the preventative duty only extends to sexual harassment – and not, at this time, any other form of harassment.
As a starting point, The Equality and Human Right Commission (EHRC) have developed an 8-point guide for employers:
Develop an effective anti-harassment policy
Engage with your staff and ensure they read the policy
Assess and take steps to reduce risk in your business
Have clear reporting channels in place
Training for all staff
Acting immediate on any complaints made
Considering harassment risks posed by third parties and taking steps to prevent
Monitor and evaluate actions taken
THE CONSEQUENCES
In the event of a successful employment tribunal claim for sexual harassment, the tribunal can uplift compensation by up to an additional 25% for any business who have failed to meet their preventative duty.
The EHRC have the right to investigate non-compliance and take enforcement action – regardless of whether a sexual harassment incident has occurred or not.
Of course, both the above run the risk of attracting substantial reputational damage, particularly for large or well-known employers.
AND FINALLY…
As of last October, ALL businesses – large or small, should have taken action in light of this change to legislation. So, if you haven’t already, now’s the time.
This is an ongoing requirement, not a one-off box ticking exercise. Ensure you have mechanisms in place to continually review, build-on and document that steps that you have taken and will continue to take going forward.
This isn’t about how you respond to a sexual harassment complaint, this about taking action in advance, to prevent it from happening in the first place.
**NOTE - THIS BLOG DOES NOT CONSTITUTE LEGAL ADVICE AND IS PROVIDED AS A GENERAL GUIDE ONLY, ALWAYS SEEK YOUR OWN LEGAL ADVICE**