- 26 Sep 2024
- •
- 2 min read
Employment Alert – The Duty to Prevent Sexual Harassment
What’s happening?
The Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force on 26 October 2024, exactly one month from today. The Act introduces a duty for employers to take ‘reasonable steps’ to prevent sexual harassment of employees in the course of their employment.
Under the current law, employers can be vicariously liable for an act of discrimination (including harassment) committed by their workers in the course of employment. The employer can run a defence that they took “all reasonable steps” to prevent the harassment. However, the defence is rarely successful in practice.
Whilst the “all reasonable steps” defence will remain, the new law goes further. It introduces a new obligation for employers to take “reasonable steps” to prevent sexual harassment of employees arising in the course of their employment. In short, employers must try to prevent sexual harassment from happening in the first place.
This duty is also likely to cover preventing sexual harassment by third parties against your employees, such as clients and customers, service users and members of the public.
Why is this important?
Under the new legislation, if an employee succeeds in a claim for sexual harassment, an Employment Tribunal (ET) will also consider whether the employer complied with the new duty – to take “reasonable steps” to prevent sexual harassment. If the ET decide that the Employer has failed, then any compensation awarded for the sexual harassment could be uplifted by up to 25%.
In addition, the Equality and Human Rights Commission (EHRC) will have a standalone power to enforce the duty.
What should you do?
Recommended steps include:
- Carry out risk assessments re: where, how and from who your employee could experience sexual harassment
- Update your policies
- Deliver targeted sexual harassment training to staff and managers aimed at preventing sexual harassment and encouraging reporting of harassment
- Deal with the complaints robustly
- Organise workplace support groups for harassment
- Display notices confirming a zero-tolerance approach
In all claims of sexual harassment, an employer will be asked to show what steps it has taken BEFORE the harassment took place and to prevent it – subsequent action will not help.
Employment Rights Bill
As you will be aware from previous updates, Labour is planning major shake ups of Employment Law. The Employment Rights Bill is expected to be revealed in early October. It is possible that Labour will extend this sexual harassment duty as part of this.
Trethowans are holding a free webinar on Tuesday 5 November designed to highlight the key changes set out in the Employment Rights Bill. A link to sign up will follow shortly.
Sexual Harassment Training
If you would like to get ahead of the curve in taking reasonable steps to prevent sexual harassment, Trethowans Employment team can deliver dedicated training sessions for HR, Leaders/Managers and/or Workers, either in person at your premises or online – please email [email protected] for a quote.
