The Equality Act 2010 defines sexual harassment as unwanted conduct of a sexual nature which has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
What is changing?
From 26th October 2024, all employers will be under a new proactive and preventative duty under Equality law meaning employers must take reasonable steps to prevent sexual harassment of workers.
- People can complain to the equality authority that you are not taking reasonable steps to prevent sexual harassment even when no allegations have been made
- You must take proactive preventative action in respect of your workers and third parties
- Compensation at employment tribunal can be increased by up to 25%
If an employer fails to take reasonable steps, the Equality and Human Rights Commission can take enforcement action.
What does Enforcement Action look like?
Enforcement actions can include:
- Issuing an unlawful act notice and requiring an employer to put an action plan in place to prevent future breaches
- Entering into a formal, legally binding agreement with an employer to prevent future unlawful acts
- Asking the court for an injunction to restrain an employer from committing an unlawful act.
What should Employers do?
The law does not list specific steps an employer must take, the Equality and Human Rights Commission have however come up with some practical steps to help employers take positive action to prevent and deal with sexual harassment at work.
Step 1 – develop an effective anti-harassment policy
An effective policy could either be a single policy covering all forms of harassment or a separate policy to deal with sexual harassment. In either case it should include, who is protected, definitions and examples of harassment, the potential use of the disciplinary policy and an effective procedure for receiving and responding to complaints
Third party harassment should also be covered together with a commitment to review the policy regularly and monitor it’s effectiveness.
Step 2 – engage your staff
This could include regular 121 reviews, staff surveys and exit interviews, with an open door policy ensuring that workers are aware of how to report sexual harassment and the consequences of breaching a policy.
Step 3 – assess and take steps to reduce risk in the workplace
- Consider the risks occurring in the course of employment
- Consider what steps you could take to prevent sexual harassment of workers by others and by third parties
- Consider which of those steps would be reasonable to take
- Implement those reasonable steps.
Step 4 – reporting
Consider what workers should do to report anything they have encountered or witnessed including to who they should report their complaint. Remember confidentiality is essential, workers may want to raise an issue anonymously a consistent reporting system could be considered.
Step 5 – training
All workers including management and senior staff should be trained on:
- what sexual harassment is, how it may occur and that it will not be tolerated
- expected levels of behaviour
- how they can report any incidents of having been sexually harassed or having witnessed it
- how acts of harassment will be dealt with under the disciplinary procedure, which can potentially result in dismissal.
Where third party harassment is more likely, workers should also be training on how to address these issues. Third-party sexual harassment occurs when a member of the workforce is subjected to sexual harassment by someone who is not part of the workforce but who is encountered in connection with work.
Step 6 – what to do when a harassment complaint is made
- act immediately and respect confidentiality
- protect the complainant during an investigation or complaint
- consider whether this is a criminal offence and support the complainant with reporting the matter to the police if they wish to do so
- communicate the outcome of the complaint and an appeals process
Step 7 – dealing with third parties
Consider reporting mechanisms for third party harassment and assess high risk workplaces where staff may be left alone with a third party for example a customer, client or supplier. Consider what steps will be taken to remedy a complaint and prevent it from happening again i.e. banning the third party or reporting criminal acts.
Step 8 – monitor and evaluate your actions
Regularly review and evaluate all steps, seek input from workers and consider changes in the workforce regularly which may mean risk assessments or policies require updating.
Whilst these steps are not exhaustive, they will go a long way to help you comply with the preventative duty and protect your staff from sexual harassment. Please get in touch if we can help you prepare for the new legislation.
