(5 min read)
The Equality and Human Rights Commission (EHRC) has published updated Technical Guidance (Guidance) on sexual harassment and harassment in the workplace along with a useful employer 8-step guide: preventing sexual harassment at work. The Guidance covers sexual harassment, harassment and victimisation in employment under the work provisions in the Equality Act 2010 (EqA 2010), including the new positive legal duty to take reasonable steps to prevent sexual harassment of workers (the ‘preventative duty’) due to come into force on 26 October 2024. It aims to help employers to understand their positive legal obligations in relation to the preventative duty, the steps they must take to prevent sexual harassment at work and what they should do if harassment occurs.
Background
On 26 October 2024 the new Worker Protection (Amendment of Equality Act 2010) Act 2023 (Act) will come into force.
- Under the Act, employers will be under a new duty to take reasonable steps to prevent sexual harassment of their employees in the course of their employment.
- Breach of this duty:
- May be enforced by the EHRC under its existing enforcement powers; and
- Where a claim for sexual harassment has been upheld by an employment tribunal, the tribunal may order an uplift of up to 25% of any compensation awarded if the tribunal considers that the duty to take reasonable steps to prevent sexual harassment has been breached.
On 9 July 2024, the EHRC published a consultation on its technical guidance intended to help employers, workers and their representatives understand how the EqA 2010 prohibits harassment at work. The consultation closed on 6 August and the final version of the Guidance was published on 26 September 2024, together with an 8-step employer guide.
What can employers learn from the Guidance about the new preventative duty due to come into force on 26 October?
1. Sexual harassment of workers
The new preventative duty coming into force on 26 October 2024 only applies to sexual harassment (unwanted conduct of a sexual nature which has the purpose or effect of violating a worker’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that worker) that takes place in the course of employment.
It does not cover other types of harassment relating to a protected characteristic, nor does it apply to less favourable treatment for rejecting or submitting to unwanted conduct (although it notes that these types of harassment are unlawful and employers should take steps to prevent all types of harassment at work).
2. Anticipatory duty
The new preventative duty is "designed to transform workplace cultures by requiring employers to take positive and proactive reasonable steps to prevent sexual harassment of their workers". Employers must anticipate scenarios where sexual harassment may arise and take proactive action to prevent it taking place, rather than waiting until an incident of sexual harassment occurs before taking action. If sexual harassment has taken place, the preventative duty means an employer should take action to stop sexual harassment from happening again.
3. Reasonable steps
Employers must take reasonable steps to prevent sexual harassment of their workers in the course of employment. This is an objective test and will vary between different employers, as well as depending on the facts and circumstances of each situation.
Since the consultation, the list of relevant factors in deciding whether a step is reasonable has been added to considerably at paragraph 3.32. It now includes taking into account the nature of the working environment, the time, cost and potential disruption of taking a particular step, weighed against the benefit it could achieve.
A new example has been added of a business where the risk assessment has concluded that there is a high risk of sexual harassment within the business and that urgent action is needed. The reasonable steps listed are detailed and potentially costly in terms of resources, time and money. The Guidance acknowledges that not all businesses would need to take all the listed steps to comply with its duty, but they might be an indication of the sort of actions a business could be expected to put in place as part of any enforcement action by EHRC.
A second example is in a hospital setting, where the employer thought it had taken reasonable steps to prevent sexual harassment, but subsequent reports revealed that the duty may not have been met and puts in place further actions. This illustrates the point that employers need to review what steps they are taking on a regular basis to meet the duty.
4. Risk assessments
More emphasis on the importance of risk assessments has been added since the consultation, including how to carry them out, factors to consider, reviewing them regularly and taking mitigating action if any new or additional risks are identified. The Guidance suggests that existing risk management frameworks in the health and safety context could be used for this process.
- Paragraph 3.31 makes it clear that an employer "is unlikely to be able to comply with the preventative duty unless they carry out a risk assessment."
- Examples of risk factors to consider are listed at paragraphs 4.10 and 4.11, including, for example, a male dominated workforce, gendered power imbalances, a workplace culture that permits crude/sexist "banter", or other disrespectful behaviour, night working, staying away from home overnight, working alone with a third party, an employer's failure to respond appropriately to previous reports of sexual harassment.
- Staff should understand what harassment and sexual harassment is, know what to do if an incident happens, and what the employer will do when a complaint of harassment is made (paragraph 4.12).
- Paragraphs 4.14 and 4.15 suggest employers produce an action plan setting out the preventative steps they will take to address any identified risks and how that will be monitored (perhaps published to workers and the public, e.g. on their website) and consider appointing a designated lead to take responsibility for implementation of the action plan and compliance with the preventative duty.
What practical steps can employers take to prepare?
Alongside the Guidance, the EHRC have published a practical 8-step employer's guide which recommends that employers take the following steps:
1. Develop an effective anti-harassment policy that clearly distinguishes between the different forms of harassment and addresses third-party harassment (e.g. explaining the legal position and that it will not be tolerated, workers are encouraged to report it, steps that will be taken to prevent it and to remedy a complaint / prevent it from happening again, e.g. warning a customer about their behaviour, banning a customer, reporting any criminal acts to the police or sharing information with other branches of the business).
2. Engage staff by conducting regular 1-2-1s, staff surveys, exit interviews, open door policies. Convey how to report sexual harassment, where to find the policy and the consequences of breaching the policy.
3. Undertake a risk assessment to help comply with the preventative duty and consider factors which might increase the likelihood of sexual harassment and the steps that can be taken to minimise them, such as a power imbalance, staff working alone, customer facing duties.
4. Have a reporting system which allows staff to raise issues anonymously or in their name.
5. Train managers/senior staff as well as workers. In industries where third-party harassment from customers is more likely, train workers on how to address issues.
6. Complaints: Act immediately to resolve complaints, taking account of how a worker wants it to be resolved and protect workers from ongoing harassment. Discuss police reporting if the complaint may be a criminal offence and only use confidentiality agreements where lawful, necessary and appropriate to do so.
7. Deal with harassment by third parties: for example, from customers, clients, supplier, members of the public. These complaints should be treated as seriously as harassment by a colleague and employers should take steps to prevent it.
8. Monitor and evaluate actions: Regularly evaluate the effectiveness of steps put in place to prevent sexual harassment in the workplace and implement any changes arising from it e.g. anonymous staff surveys of sexual harassment experiences, compare reported complaints against survey feedback, review complaints data to see if there are trends or particular issues. Review and update policies, procedures and training regularly.
Comment
We are also expecting EHRC to update its statutory Employment: Code of Practice to reflect the new duty on employers from October 2024, but nothing has been published yet.
The Guidance draws a distinction between the employer's reasonable steps defence in s109(4) EqA 2010 (where an employer can avoid liability for harassment if it can show that it has taken "all reasonable steps" to prevent harassment by a worker – see paras. 3.49 and 3.50) and the new additional preventative duty to take "reasonable steps" to prevent sexual harassment of workers in s.40A(1) EqA 2010 (see para 3.57). This is because the preventative duty is a separate positive legal duty. The word "all" was removed during the Bill's progress through Parliament. However, the Labour Party has indicated that it may revisit this legislation in the future. Labour's Plan to Make Work Pay states that Labour "will strengthen the legal duty for employers to take all reasonable steps to stop sexual harassment before it starts," although we have no further updates on this proposal yet.
However, as a breach of the preventative duty will only be taken into account as part of a successful claim for sexual harassment (where an employer will have failed to show that it took "all reasonable steps" to prevent the harassment), it follows that employers who have already lost on sexual harassment are likely to have also breached the preventative duty to take "reasonable steps" to prevent sexual harassment. This suggests that most successful claims for sexual harassment from 26 October will be capable of attracting a higher level of compensation than a claim for ‘normal’ harassment.
