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A. From 26 October 2024, all employers will be under a new duty which will require them to take reasonable steps to prevent sexual harassment from occurring in the workplace. Ahead of this, the Equality and Human Rights Commission (EHRC) has updated its technical guidance, which is currently the subject of a public consultation. The consultation runs until 6 August 2024, and the finalised version of the technical guidance is expected to be released in September 2024.
In the updated technical guidance, the EHRC explains that the duty includes the prevention of sexual harassment of workers by third parties like self-employed contractors, members of the public, customers, and clients.
What is sexual harassment?
Sexual harassment is when a person is subjected to unwanted conduct of a sexual nature which has the purpose or effect of either violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. If they are treated less favourably because they submitted to, or rejected that unwanted conduct, that is also sexual harassment.
What are the current obligations?
A claim for sexual harassment can be brought by workers against their employer because employers are vicariously liable for the actions of their workers when acts of harassment are carried out “in the course of employment”, regardless of whether the employer knows about or approves of those acts. This is usually defended by the employer arguing that it has taken “all reasonable steps” to prevent the harassment from taking place.
What are “reasonable steps”?
The draft guidance explains that what is reasonable will vary from employer to employer and it will depend on various factors like the employer’s size, the sector it operates in, and the risks present in that workplace.
Examples of steps you and your clients could take include:
• Having a sexual harassment policy.
• Training all staff on sexual harassment and what is considered to be unacceptable behaviour in the workplace, and how to keep themselves safe.
• Assessing the risk of it happening in the workplace.
• Creating a culture of transparency where workers feel able to speak up and raise concerns without fear that they will not be taken seriously.
• Having a clear procedure in place so that workers know how they can report concerns and what steps will then be taken.
• Communicate that the business has a zero-tolerance approach to harassment.
This is not an exhaustive list, and any measures should be tailored to the specific organisation and regularly reviewed.
What happens if there is a breach of the new preventative duty?
Once in force, a complaint can be made to the EHRC which has the power to take enforcement action against your business and that of your clients. No allegations of sexual harassment are needed in order to raise this complaint.
If a claim of sexual harassment is brought in the employment tribunal, then the tribunal must consider if and to what extent the employer has complied with the preventative duty. If the employment tribunal finds that the preventative duty has been breached, it may increase the compensation awarded by up to 25%.
