A guide to employers’ new legal obligation to prevent sexual harassment in the workplace

A new obligation for employers to take appropriate measures to prevent sexual harassment is imminent. What do companies need to do to prepare?

From October 26, 2024, employers are obliged to take reasonable measures to prevent sexual harassment of their employees. This new preven­tative duty is contained in the Worker Protection (Amendment of Equality Act 2010) Act 2023.

The duty to prevent only applies to sexual harassment and not to other “protected charac­ter­istics” contained in the Equality Act 2010. It is in addition to the current protec­tions against discrim­i­nation, harassment and victim­ization contained in this Act.

On September 26, 2024, the Equality and Human Rights Commission (EHRC) published a compre­hensive update Technical instruc­tions for employers and an 8‑step guide for employers: Prevent sexual harassment in the workplace that are worth a look.

What is sexual harassment?

The Equality Act 2010 defines this as unwanted conduct of a sexual nature which has the purpose or effect of either violating a person’s dignity or creating an intim­i­dating, hostile, degrading, humil­i­ating or offensive environment for them.

Examples include unwanted physical contact, sexual jokes or comments, sexual advances, sending sexually explicit emails/texts, and viewing sexually graphic images.

What is the duty of precaution?

The guide describes it as “a positive and proactive duty aimed at trans­forming workplace cultures”.

• Employers should antic­ipate scenarios in which their employees may be subjected to sexual harassment in the course of their employment and take steps to prevent this.
• If sexual harassment has occurred, employers should take steps to prevent it from happening again.
• The duty of prevention applies to harassment by third parties (contrary to the Equality Act 2010), such as clients, customers, service users or members of the public.
• An individual cannot bring an independent claim for breach of the preventive duty themselves, but if there is a breach this may affect the amount of compen­sation, which is explained in more detail below.

Sensible steps

The guide makes it clear that there is no mandatory minimum. What is appro­priate depends on the employer. Relevant factors include:

• Size, resources and industry of the employer
• Risks in this workplace
• Contact with third parties
• The likely impact of a particular step and whether an alter­native step might be more effective
• The time, cost, and potential disruption of a particular step were weighed against the benefits

Factors to consider in a risk assessment

Signif­i­cantly, the guidance states that employers are unlikely to be able to meet their prevention oblig­a­tions if they do not carry out a risk assessment.

It is not a static oblig­ation and employers must regularly review their preventive measures.

The guide highlights several risk factors that may increase the risk of sexual harassment in the workplace, including:

• A male-dominated workforce
• A workplace culture that allows crude/sexist “banter.”
• Gender-specific power imbal­ances
• Working alone or in isolation
• Workplaces that allow alcohol consumption
• A casual workforce
• There are no policies or proce­dures in place to deal with sexual harassment

Consequences if the new obligation is violated

If an employee success­fully claims sexual harassment and the labor court awards compen­sation, the court must examine whether the employer has breached the duty of prevention. If this is the case, the court can order an increase in compen­sation of up to 25%. Compen­sation for sexual harassment is unlimited and includes past and future loss of earnings and emotional injury; As a result, the compen­sation increase could be signif­icant. Note that the EHRC may also take enforcement action against the employer.

What can employers do to prepare as the preven­tative oblig­ation only comes into effect for a few weeks?

• Conduct a risk assessment

Consider the risks of sexual harassment, what can be done to mitigate those risks, and what actions might make sense.

• Educate your employees about sexual harassment and what actions amount to such behavior.

Refer to the Equality Act 2010 defin­ition and provide examples of what would constitute unwanted sexual behavior.

• Promote an inclusive culture in the workplace

Implement a zero-tolerance approach to sexual harassment that will help create a respectful and inclusive environment. Management and execu­tives play a crucial role.

• Implement a clear anti-harassment policy

Encourage employees to report sexual harassment and establish an effective complaints procedure. Make it clear that harassment can result in disci­plinary action. Publicize the policy and ensure it is easily acces­sible and regularly reviewed. Support complainants.

• Provide training for workers and managers

Adapt this to the specific workplace and target group. If there is a risk of third-party harassment, the training should address this. Keep records of who has received training and update them regularly.

Be proactive and pay attention to warning signs in the workplace, such as: B. Illness, absence, loss of perfor­mance, changes in behavior or termi­na­tions.