From 26 October 2024, employers are required to take reasonable steps to prevent sexual harassment in the workplace, including by third parties.
Employees, workers and contractors who carry out their work personally are protected by the new law.
The Equality and Human Rights Commission (ECHR) has published updated technical guidance to help employers comply with the law and, in tandem, a guide setting out 8 steps that employers need to take.
Consequences of non-compliance
Unlike current legislation, this new law requires employers to take proactive measures to prevent sexual harassment. Being able to do that requires a great deal of planning, preparation and paperwork.
In addition, although there is no freestanding claim for breach of this law, tribunals considering sexual harassment cases have the power to award an uplift of 25% of compensation if there is found to be a breach of this law.
This is in addition to the possibility of adverse publicity following a finding that an employer did not take adequate steps to prevent this type of behaviour and regulatory issues, if your business is within a regulated environment.
If you are an employer, you should take immediate steps to ensure that your business complies with the new law.
We recommend that you review the ECHR technical guidance and 8 step guide in the first instance, as these set out the actions that employers should be taking at a bare minimum.
How to demonstrate compliance with the new law
We have summarised some of the key takeaways from the EHRC guidance to show what is expected of employers:
- Policy: You should develop a clear and robust anti-harassment policy in partnership with employees or recognised trade unions that, at the very least, defines sexual harassment, makes clear that the company has a zero tolerance policy towards it, outlines unacceptable behaviours, has clear reporting procedures and the consequences for breaches. This policy should be communicated to all employers, workers and contractors, be widely accessible to all and be regularly updated.
- Training: You should implement comprehensive training programs to educate employees about sexual harassment, emphasising prevention, awareness, and the importance of a respectful workplace. Regular refresher courses should also be provided.
- Reporting: You should ensure that employees, workers and contractors know what to do if they experience or witness sexual harassment. You could also consider setting up a dedicated confidential and safe reporting line for people to report incidents of harassment, whether anonymously or not. You should take steps to ensure the safety and confidentiality of complaints data and that appropriate privacy notices are issued to explain what the collected information will be used for. You should review the details of any complaints received to help them identify any trends and areas of concern that require action. In summary, it is about creating an environment where people feel confident to speak up.
- Risk assessments: The EHCR guidance is very clear that, without risk assessments, employers are unlikely to be able to show that they are compliant with this law. You should conduct regular assessments, bespoke to the workplace, industry and sector, and possibly even individual departments and teams, to establish any specific risks. Then, plan and take action to prevent and reduce those risks. For example, customer facing roles, workplaces dominated by one sex or another and workplaces with a history of sexual harassment problems or allowing certain behaviours may have specific risks attached.
- Engaging your staff: You should evaluate the success or otherwise that the actions they are taking are having. All employers would like to think they are doing a great job, but will only ever know if they ask the employees about their experience to ensure the reality matches up to the perception. One-to-ones, exit interviews, open door policies and staff surveys, and even checks of workplace review websites like Glassdoor can all provide valuable feedback. They can help employers identify concerns and trends, update their risk assessments and policies and take further steps to achieve continuous improvement.
- Deal with complaints immediately: You should develop a robust procedure for responding to complaints, ensuring investigations are timely, impartial, and thorough. Employers should communicate outcomes to complainants, reinforcing a commitment to accountability. Employers should ensure that staff who raise complaints are supported and protected from any potential retribution and that they are supported in the event that they wish to make a complaint to the police about harassment that amounts to a criminal offence.
- Third party harassment: The ECHR guidelines require this to be included in the policy. So, whilst a word in the legislation that would have given rise to third party harassment obligations was removed by the House of Lords, you should include a section in your policy to cover this and consider what reasonable steps you could take to prevent harassment of your staff by third parties. You should also include what actions you will take if a well-founded complaint is made about this.
This would need to be tailored to the industry you work in and the third parties you are dealing with, but steps to prevent harassment could include, warning third parties that sexual harassment will not be tolerated by displaying visible notices and posters, adding provisions to contracts and adding a warning to peoples’ auto-signatures. Action could be speaking to and warning the third party, barring them from using the service or terminating their contracts.
Conclusion
The new law requiring employers to take reasonable steps to prevent sexual harassment is a key step towards facilitating workplaces that are free of such behaviour.
However, where this law differs from previous approaches is the requirement for employers to take proactive and preventative measures to prevent sexual harassment, so employers should not fall into the trap of being found to have done nothing or not having done enough.
As you can see, there are a lot of actions employers need to take in order to comply and you must ensure that you cover all bases.
If you require any assistance with ensuring that your business is compliant with this new law or if you require training, please do contact Moore HR Consultancy.