New duty on employers to protect employees from sexual harassment

As part of the raft of potential employment law changes being introduced by Labour, there are changes to The Worker Protection (Amendment of Equality Act 2010) Act 2023 coming into force on 26th October. In this blog, we explain what’s changing and what you need to do as an employer.

The background

According to the Office for National Statistics, one in ten people aged 16 and over have experienced at least one form of harassment that made them feel upset, distressed, or threatened in the previous 12 months. A quarter of those who had experienced sexual harassment said they had experienced harassment at their place of work.

The Worker Protection (Amendment of Equality Act 2010) Act 2023 stipulates that UK employers should take decisive action to prevent sexual harassment in the workplace. Currently, there is no cap on sexual harassment compensation awarded by an employment tribunal. The Act extends to England, Wales and Scotland.

What is changing?

From 26th October, employers now have a proactive and preventative duty to protect employees from sexual harassment. The legislation stipulates that employers must take “preventative steps” to protect employees.

The new duty introduces a transformative shift in employer responsibilities, requiring proactive measures to combat sexual harassment rather than merely responding to claims. The Act aims to change workplace culture from one of reaction to one of prevention.

If an employer fails in this duty, the Equality and Human Rights Commission (EHRC) can take enforcement steps and a tribunal can order a compensation uplift of up to 25% of a sexual harassment claim award.  Remember, there is also no cap on claims.  The EHRC is expected to update its technical guidance on sexual harassment to reflect the new duty.

Under the amendments, employees can make a complaint to the equality authorities that the employer hasn’t taken reasonable steps to prevent sexual harassment. This is even if no allegations have been made.

Third parties

It’s not clear what the employer’s duty is when it comes to harassment from someone who is not an employee, for example a customer, patient / service user, client or visitor. Whilst the Act doesn’t explicitly impose a duty on employers to prevent harassment from third parties, the EHRC’s guidance still suggests that employers should take reasonable steps to avoid it (and the EHRC can itself take enforcement action against the employer). This could include steps such as displaying signage in public areas that stipulates the zero-tolerance approach to the abuse of staff.

What constitutes sexual harassment?

ACAS defines sexual harassment as unwanted behaviour of a sexual nature. The law (Equality Act 2010) protects the following people against sexual harassment at work:

• employees and workers
• contractors and self-employed people hired to personally do the work
• job applicants

To be sexual harassment, the unwanted behaviour must have either:

• violated someone’s dignity
• created an intimidating, hostile, degrading, humiliating or offensive environment for someone

It can be sexual harassment if the behaviour:

• has one of these effects even if it was not intended
• intended to have one of these effects even if it did not have that effect

It’s also important to note that sexual harassment does not only take place in person, but can occur over email, phone or social media.

Steps to take

Whilst the Act has not specifically defined the ‘reasonable steps’ employers are required to take, the EHRC has provided eight step guidance to help employers. It appears that each step would be judged objectively and be dependent on things like the size of the business and the potential risks.

1. Develop an effective anti-harassment policy

This is essential in protecting employees and the business. It should outline the organisation’s approach to sexual harassment (which should be zero tolerance), and cover:

• who is protected
• state that sexual harassment will not be tolerated and is unlawful
• state that harassment or victimisation may lead to disciplinary action up to and including dismissal
• state that aggravating factors, such as abuse of power over a more junior colleague, will be taken into account in deciding what disciplinary action to take
• define sexual harassment and provide clear examples of it – examples should be relevant to your working environment and reflect the diverse range of people that harassment may affect
• include an effective procedure for receiving and responding to complaints of harassment
• address third-party harassment (such as by customers or service users)

Employers may decide to have separate policies to deal with sexual harassment or other harassments or just one policy covering both.

The section addressing third party harassment should explain clearly:

• that while an individual cannot bring a claim for third-party harassment alone, it can still result in legal liability when raised in other types of claim
• that it will not be tolerated
• that workers are encouraged to report it
• what steps will be taken to prevent it
• what steps will be taken to remedy a complaint and prevent it from happening again
  • for example, warning a customer about their behaviour, banning a customer, reporting any criminal acts to the police or sharing information with other branches of the business

The overall policy should also:

• include a commitment to review the policy at regular intervals, monitor its effectiveness and implement any changes that may be required
• cover all areas of the business including any overseas sites, subject to any applicable local laws

2. Engage staff

A variety of methods can be used to engage staff, including regular meetings, staff surveys and exit interviews. These will help employers to understand and identify any potential issues. Staff need to understand how they report sexual harassment, the organisation’s policy and the ramifications of breaching the policy.

3. Conduct a risk assessment

Understand the potential risks of sexual harassment occurring in the course of employment for your staff. Look at the risks from third parties, including customers, clients and visitors.  Within the risk assessment employers should also look at the current processes in place for reporting and policies and procedures in place. It should also look at the company’s existing policies that could prevent harassment, including the use of social media and mobile phones. Exit interviews are another effective tool for identifying issues and areas of risk. This should highlight where there may be gaps currently and where they can be improved.

The EHRC suggests also analysing the following within the organisation:

• Where are the power imbalances?
• Is there a lack of diversity in your workforce?
• Is there job insecurity for a particular group or role?
• Are staff working alone or at night?
• Do your staff have customer-facing duties?
• Are customers or staff drinking alcohol?
• Are staff expected to attend external events, conferences or training?
• Do staff socialise outside of work?
• Do staff engage in crude or disrespectful behaviour at work?

4. Define clear reporting channels

As part of the policy, employers should clearly define how sexual harassment is reported, the next steps and the process that will be followed. For example, an online or telephone reporting system would allow employees to report sexual harassment anonymously. It’s also essential to keep centralised, confidential records of any concerns raised. This will help employers to spot any trends or recurrences.

5. Train staff

Employees should be trained regularly on how to prevent sexual harassment. This is particularly relevant for those who are responsible for implementing the policies or managing complaints. The training should link closely to the anti-harassment policy and make staff aware of the legal implications of the Act, and the steps the organisation is taking to stop it occurring and the reporting process.

Training should include:

• What sexual harassment looks like in the workplace
• Processes to follow
• Handling complaints of sexual harassment

In industries where third-party harassment from customers is more likely, workers should also be trained on how to address these issues. Training should be regularly reviewed and assessed to ensure it’s up to date and relevant.

6. Establish a robust process if a complaint is made

All complaints of sexual harassment must be thoroughly investigated immediately, and that the appropriate action is taken. However, this should take into account how the worker wants the complaint to be resolved – respecting the confidentiality of all involved. This will include disciplinary action against perpetrators whilst supporting victims. Outcomes of the complaints should be communicated in a timely manner to the complainant.

7. Analyse the risk of third-party involvement

Harassment from third parties should be treated in the same way, with the same level of seriousness, as that of a colleague. Employers should develop a plan to mitigate these risks, including training and displaying signage to demonstrate the employer’s stance on sexual harassment.

8. Review and refine

It’s essential that the effectiveness of the steps put in place to prevent sexual harassment should be reviewed regularly.  All training should be logged, as well as any complaints or changes made to the policy.

It’s useful to evaluate the steps by looking at the following:

• reviewing informal and formal complaints data to see if there are any trends or particular issues and appropriate actions
• surveying staff anonymously on their experiences of sexual harassment, including whether they have witnessed or been subjected to harassment, whether they have or would in the future report it (and if not, why not) and what further steps they think you could take
• comparing reported complaints with survey feedback to ensure you have an accurate reflection of the level of sexual harassment in your workplace, and take appropriate actions
• hold lessons-learned sessions after any complaints of sexual harassment are resolved

Ultimately, the introduction of this new duty is a seismic moment for all businesses in combatting sexual harassment in the workplace and creating safer workplaces across the UK.