What employers need to know about new sexual harassment rules
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New rules mean that from 26 October 2024, all employers will be under a new obligation to take reasonable steps to prevent sexual harassment of workers in their employment. Wilkin Chapman Solicitor, Lily-Rose Darwood explains what it means for you.
The Equality and Human Rights Commission (EHRC) describes new rules to prevent sexual harassment of workers as “a positive and proactive duty designed to transform workplace cultures”.
As the new duty comes into force on 26 October 2024, businesses of all sizes will be expected to follow the new guidelines.
Sexual Harassment is defined in the Equality Act 2010 (“The Act”) as unwanted conduct of a sexual nature which has the purpose or effect of either violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
Common examples include unwelcome physical contact, sexual ‘jokes’ or comments, unwanted sexual advances and/or gestures, leering, staring or suggestive looks and sending sexually explicit emails/texts.
This new duty is in addition to the existing protections and statutory defence against discrimination, harassment and victimisation already set out in the Act.
It is a preventative duty and so employers should consider all possible scenarios when their workers may be subject to sexual harassment in the course of their employment and take action to prevent it. Employers will need to show the specific measures they have put in place to comply with the new duty.
Employers will not only be accountable for addressing sexual harassment after it occurs but also proactively seeking to mitigate the risk of the conduct occurring in the first place.
It is worth pointing out that the new duty is limited to preventing sexual harassment only and it does not apply to harassment based on any other protected characteristic.
EHRC guidance confirms that there are no prescribed minimum steps and what is reasonable will vary from employer to employer and will depend on the facts and circumstances in each case, for example taking into consideration the employer’s size and resources, sector, working environment and any particular risk factors.
If an employer fails to comply with the new duty, there are a number of potential significant consequences:
Compensation: In the event of a successful claim for sexual harassment, the employment tribunal must consider if and to what extent the employer has complied with this new duty. If the tribunal finds that the new duty has been breached any compensation awarded can be increased by up to 25%.
Enforcement action by the EHRC: The EHRC will be issued with powers to take enforcement action against an employer. They will also be able to carry out their own investigations and issue unlawful act notices.
Provide regular education to workers about what sexual harassment is and how to avoid committing such conduct.
Implement a clear anti-harassment policy, ensure that all workers are aware of it and how they make a report of sexual harassment.
Investigate and record all complaints, look for patterns or themes and consider what preventative steps can be taken.
Ask workers for their thoughts as to what risks they feel they are exposed to and act on feedback.
Look out for warning signs such as patterns of sickness absence or comments made at exit interviews and take positive steps in response.
Carry out risk assessments and consider what steps can be taken to mitigate any identified workplace specific risks. Risk factors in the workplace could include including, customer-facing duties, gendered-power imbalances and lone or isolated working.
Training is vital, but more crucially training must be refreshed at regular intervals.
Contact Lily-Rose to discuss this further.
