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Sexual harassment New mandatory duty – Will your organisation be compliant?
Sarah Collier
The landscape surrounding sexual harassment in the workplace has changed significantly following the #MeToo movement dating back to 2017. Since then, following reports published in 2021 by the Equality and Human Rights Commission (EHRC) and the Women and Equalities Select Committee (WESC), the government acknowledged that existing legal protections against harassment in the workplace left room for improvement. It launched a consultation to consider sexual harassment in the workplace including whether a mandatory duty should be imposed upon employers to ensure employees are better protected from sexual harassment.
Further to that consultation, the Worker Protection (Amendment of Equality Act 2010) Bill received Royal Assent in 2023. The Worker Protection (Amendment of Equality Act 2010) Act 2024 will now come into force on 26 October 2024 and will impose a mandatory duty on employers to take ‘reasonable steps’ to prevent sexual harassment. The act will also give Employment Tribunals powers to uplift sexual harassment compensation by up to 25% where the new duty is found to have been breached by employers.
Employers will therefore need to ensure that they are prepared for the new duty to prevent workplace sexual harassment. Here’s our top 6 tips to ensuring your business is compliant and has taken the necessary ‘reasonable steps’:
- Adopting a zero-tolerance culture which is openly supported by senior managers alongside workplace champions who aim to provide support and advice to staff affected by sexual harassment.
- Policy Implementation – Employers are advised to introduce a tailored anti-harassment policy which is both detailed and specific. Policies should contain a definition of sexual harassment and outline what conduct could be deemed to constitute sexual harassment. It is important to ensure the policy is regularly reviewed and kept up-to-date with necessary changes. Employers should also consider whether to separate their sexual harassment policy from their wider equality and diversity policies.
- Ensure clearly defined reporting procedures – It’s also important that companies are clear as to how staff should report any alleged wrongdoing. Staff should be advised who has overall responsibility for dealing with reports and should be reassured that any reports of sexual harassment will be taken very seriously and fully addressed and investigated. Staff should be reassured that they will not be victimised for making any compliant.
- Communicate effectively with all staff – As with any workplace policy, it is important that all staff are fully aware of the existence of the sexual harassment policy and any changes that are subsequently made. It should also be readily accessible and available for staff to access. Employers may also wish to consult with their workforce prior to implementing/making any changes to their policy to ensure they are involved in the process.
- In-house workplace training – Another key step employers should take to comply with the new duty is to devise and implement appropriate and bespoke workplace training to ensure all staff are fully informed about what sexual harassment in the workplace looks like, what staff can do if they experience it and how all staff have an obligation to report it. It’s also important for staff to understand how to raise issues within the company with a clear and transparent complaints procedure.
- Risk Assessments – Companies should conduct thorough and meaningful risk assessments to identify which parts of their business may be at higher risk due to greater power imbalances.
In addition to the above, businesses must ensure they carefully investigate complaints and take necessary and appropriate action where any wrongdoing is identified. Providing support throughout any ongoing process to both the complainant and alleged perpetrator is highly advisable.
The EHRC plans to update its technical guidance and set out steps that employers should take to comply with the law. The new duty is unlikely to be the end of reforms in this area and further reform could extend to requiring employers to protect employees from third-party harassment and amending the new duty to make employers responsible for taking all reasonable steps, not just reasonable steps. Change could also be forthcoming in relation to the use of non-disclosure agreements (NDAs) in relation to sexual harassment claims.
Should you require any advice or assistance in respect of any aspect of this article, please do not hesitate to get in touch with a member of the team. We can also assist with policy reviews, workplace audits and the provision and delivery of bespoke in-house training.