From 26 October 2024, employers will have a legal duty to prevent sexual harassment of their workers under the Worker Protection (Amendment of Equality Act 2010) Act 2023. For further information on the new duty, see our previous article here.
On 26 September 2024, the Equality and Human Rights Commission (EHRC) updated its Technical guidance on sexual harassment and harassment at work to reflect the change in the law. The updated guidance sets out steps that employers should take to comply with the duty to prevent sexual harassment. These include:
- undertaking risk assessments and taking action to reduce identified risks;
- producing and distributing effective harassment policies and procedures;
- proactively seeking to be aware of any workplace harassment; and
- delivering harassment and victimisation training.
Risk assessment and taking action to reduce risks
Sexual harassment happens when a person engages in unwanted sexual behaviour. It can include verbal or non-verbal actions, or physical conduct. It can include behaviour such as unwelcome sexual advances, touching, sexual jokes or written communications (eg emails) of a sexual nature. Behaviour can amount to harassment even if it was not intended to create a hostile environment, for example when the perpetrators claim to be joking, and even if the affected person joins in or seems to participate (not uncommon where the person affected is in a junior position and is afraid of the consequences if they protest). Further information on what counts as harassment can be found here.
In order to comply with the duty to prevent sexual harassment, you should carry out regular risk assessments to determine the risk of sexual harassment. Possible risk factors for sexual harassment in the workplace include a male-dominated workforce, a culture of crude banter and workers attending client sites alone.
Following a risk assessment, you should consider what steps you could take to reduce those risks and prevent sexual harassment of your workers. What is a reasonable step for your business can depend on the:
- size and resources of your business;
- risks present in the workplace; and
- time, cost and disruption of taking a particular step, weighed against the benefit it could bring.
Effective harassment policies and procedures
To comply with the duty to prevent sexual harassment you should ensure that you have effective harassment policies and procedures in place. You should also ensure that your employees are aware of these policies and procedures.
You can use our template to generate an effective Staff handbook, including a harassment policy. This document will not only help you to comply with employment law, but it will also give you the option to go above and beyond what is legally required of you and to provide your business with extra legal protections. You can customise this template to either produce standalone HR policies or to create an entire staff handbook containing the employment policies and procedures of your choice.
Our Grievance toolkit guides you through the process of formally handling a staff grievance. Once you receive a grievance and have appointed someone to handle it, you will need appropriate documents to investigate the grievance and decide an outcome. This toolkit provides these template documents which can be customised to your needs.
Proactive harassment detection
You should proactively seek to be aware of any harassment taking place. Warning signs include absences, changes in behaviour and poor performance. You should ensure employees have ample opportunity to raise any issues, even if there are no warning signs of harassment. You may do this through one-to-ones, having an open door policy, return-to-work meetings following absences and exit interviews.
Training
You should provide harassment and victimisation training. Employees should be aware of what harassment and victimisation are, what action they should take if they experience it and how complaints will be handled.
Conclusion
Compliance with the new duty is mandatory and you should ensure that you follow the steps set out in the guidance. You should also conduct regular monitoring and evaluation of action taken. If you breach the duty, the EHRC can take enforcement action. Additionally, any employment tribunal compensation awards for sexual harassment can be increased by 25%.
For further information on how to deal with a complaint about harassment, see Q&A here. For information on what counts as a discrimination complaint and how you should deal with a discrimination complaint, see Q&A here and following.
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Becca joined Sparqa Legal as a Legal Editor in 2024 after transferring from FromCounsel. She previously worked as a caseworker at Advocate, the bar’s pro bono charity. Becca regularly writes for Sparqa’s blog, covering topics including staff contracts, discrimination, and health and safety.