New employer duty in Great Britain to prevent sexual harassment and general best practice guidance
03/10/2024
From 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 places a new positive duty on employers in GB to take reasonable steps to prevent sexual harassment at work. All employers in GB must comply with the new duty irrespective of size. Whilst this positive duty does not apply in NI, the Guidance set out below is useful for employers in both jurisdictions.
Employers have for a long time been familiar with the reasonable steps defence to allegations of harassment. Whilst the language in the Act draws on this wording, there is now a real change of emphasis with employers required to be much more proactive and to take positive steps to prevent sexual harassment.
Accompanying this new law, the Equality and Human Rights Commission (EHRC) has published Sexual harassment and harassment at work: technical guidance. The Guidance covers the employer’s positive legal duty to take reasonable steps to prevent sexual harassment of its workers (the ‘preventative duty’) and sets out steps to take to avoid discrimination: These steps fall into 3 categories: those that must be taken; those that can be taken; and those that should or could be taken as matter of good practice.
Separate to the Guidance the EHRC has also published Employer 8-step guide: Preventing sexual harassment at work which is described further below.
Employer 8-Step Guidance
- Develop an effective anti-harassment policy: Ensure your equal opportunities and Dignity at Work policies and procedures are up to date and have been communicated to everyone. Your policies should make clear that your organisation takes a zero-tolerance approach to all forms of harassment, including sexual harassment. The 8-step plan explains in detail what a ‘good’ policy will contain;
- Engage your staff: you should conduct regular 1-2-1, staff surveys and exit interviews and use these to help understand where any potential issues lie;
- Assess and take steps to reduce risk in your workplace: undertaking a risk assessment will help comply with the proactive duty.
You should try to anticipate scenarios in which your workers may be subject to sexual harassment in the course of employment and take pre-emptive action to prevent such harassment taking place.
Possible factors to consider include:
- 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?
- Reporting: Consider using a reporting system that allows workers to raise issues and keep centralised, confidential records of all concerns both formal and informal;
- Training: Provide specific training for managers to help them identify acts of harassment, what to do if they witness it and how to handle any concerns.
Ensure all employees know the standards expected of them via awareness training. Employees should not only be trained on what constitutes sexual harassment, but also on the steps they can take if they have any concerns about behaviours they are experiencing or have witnessed;
- What to do when a harassment complaint is made: this includes acting immediately to resolve the complaint, taking into account how the worker wants it to be resolved; protecting the complainant from ongoing harassment and always communicate the outcome of the complaint and outline any appeals process to the complainant in a timely manner;
- Dealing with harassment by third parties: Whilst not part of the legal obligation in GB (see below) this step specifically refers to industries where third-party harassment from customers is more likely and states that workers should also be trained on how to address these issues and employers should take steps to prevent it and have reporting mechanisms;
- Monitor and evaluate your action: this includes reviewing complaints, surveys and policies, procedures and training regularly. It also recommends holding ‘lessons learned’ after any complaints of sexual harassment.
Other steps include ensuring your senior leadership team is fully engaged with the positive steps your organisation is taking. Consider also having Dignity at Work Advisors; workplace peers who are trained to provide support and guidance to employees who have a concern about workplace behaviours
Tribunal awards and other enforcement powers
Employment Tribunals in GB will have the power to uplift the compensation awarded in sexual harassment cases by up to 25% if they find that an employer has failed to comply. The EHRC also has broad enforcement powers, including powers to investigate and require an employer to enter into an agreement to take certain steps to prevent sexual harassment in exchange for the EHRC refraining from using its other powers.
Harassment by third parties
This is one area in which the law in NI and GB differs significantly.
In NI an employer is liable if it knows that an employee has been harassed (on any protected characteristic ground) in the course of their employment on at least two other occasions by a third party, and not taken reasonable steps to prevent it from happening to the employee again.
The Equality Act 2010 in GB does not contain a similar provision. However the EHRC’s updates to its technical Guidance state that ‘in addition to the prevention of worker-on-worker sexual harassment, the preventative duty includes a duty to prevent sexual harassment by third parties‘.
The EHRC’s Guidance and 8-step action plan therefore include a new duty to prevent harassment by third parties. The EHRC’s list of who can count as a third party is also broad; this could include customers, clients, service users, patients, friends and family of colleagues, delegates at a conference and/or members of the public.
This means that, as an employer, you should be considering the risk of your workers coming into contact with third parties and the likelihood of sexual harassment occurring in those situations, and then taking reasonable steps to prevent such harassment from occurring in those scenarios.
Conclusion
Although the wording of the duty is the same as the old reasonable steps defence, there is no doubt that this new preventative duty is more onerous. Employers will be expected to do much more to succeed in any statutory defence that they have taken all steps reasonably practicable to prevent the act or acts of a similar nature occurring. Up until now the detail of the steps that must be taken were provided for in case law; the EHRC Guidance and 8-step plan, demonstrates what can be expected.
As stated above this new duty applies in GB only and does not extend to NI as employment law is devolved here. At present we are unaware of any plans to introduce similar laws in NI, however the Guidance produced by the EHRC is useful across both jurisdictions.
The NI Executive Office (which has responsibility for discrimination matters) has recently completed a call for evidence on the differences in discrimination law between GB and NI this may be an area that is considered. Furthermore the Executive has recently published its draft Programme for Government 2024-2027 ‘Our Plan: Doing What Matters Most’ in which one of the immediate key priorities is Ending Violence against Women and Girls. Therefore this could well be an area considered.