The new duty to take reasonable steps to prevent sexual harassment in the workplace.
What is the new law regarding sexual harassment prevention?
From 26 October 2024, the Prevention of Sexual Harassment Act comes into force and requires all employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment.
This legislation follows various high profile issues in the media over the last few years which relate to inappropriate sexual advances and abuse of authority.
In more general terms the employer owes their employees a “duty of care” and such care has always extended to the employer ensuring that the employee is not at risk because of the actions of fellow employees. This new legislation is specific in the area of sexual harassment.
What is sexual harassment?
This may seem like a silly question but sexual harassment relates to unwanted advances and inappropriate behaviours and may relate to physical touching, unacceptable sexual innuendo and comments or invasion of personal space. Sexual harassment is also very much based around social media with employees potentially sending inappropriate, suggestive, unwanted messages via various types of social media.
However, sexual harassment can also occur in situations where a senior manager or leader is abusing their power and authority and employees believe that their career development in the business may be compromised if they resist such advances. In its most extreme, this can border on sexual assault which is obviously a criminal offence and can become a Police matter.
What are the consequences of failing to comply?
In the event that an employee brings a successful claim for sexual harassment, an Employment Tribunal can increase the compensation payable to the employee by up to 25% where it is believed that the employer did not take reasonable steps to prevent such harassment taking place. Employees can also bring a complaint to the Equality and Human Rights Commission (EHRC), who can investigate employers and have the power to enter into legally-binding agreements requiring them to take steps to address issues in the workplace.
What is meant by “reasonable steps”?
Whilst the legislation is not specific and prescriptive, it says that “reasonable steps depends on the specific circumstances of the employer, including its size and sector and other relevant factors. In most cases, the employer’s practices and procedures (eg grievance and reporting procedures) for preventing and dealing with sexual harassment are likely to be relevant”.
However the EHRC have provided some guidance and keys steps are likely to be;
Risk Assessments – employers should consider the risk of sexual harassment occurring in the course of employment and areas of specific risk might include alcohol at work (Christmas parties), social functions, late night working in isolated environments, working in pairs and power imbalances where authority could be abused.
The risk assessment should then consider what steps can be taken to mitigate risk and such risk should also consider third parties – ie sub-contractors, consultants, customers etc .
Risk assessments should be documented and reviewed.
Policy/procedure – employers should also have appropriate policies that deal with sexual harassment, expected behaviours and offers a complaints mechanism.
Training – demonstrating that awareness training has taken place and additional training for managers who may be involved in dealing with complaints of sexual harassment.
Consultation – large employers may want to consider consulting with staff and trade unions if appropriate and may even want to deal with such issues through an anonymous staff survey. This may be less appropriate and practicable in smaller businesses.
Reporting mechanisms – employers should have a clear and effective reporting process so that employees know how to raise a complaint and understand how such complaints will be dealt with. In many cases, such issues are currently managed through a grievance process.
Monitoring – the duty is on-going and it is important to monitor the effectiveness of steps taken by the employer. The guidance states – “if sexual harassment has taken place, the preventative duty means an employer should take action to stop sexual harassment from happening again.”
Workplace champions – employers may wish to consider having workplace champions to provide support and advice to colleagues and this would be someone an employee could speak to if they are experiencing difficulty.
Employee Assistance Programmes – EAPS – some employers may already have EAPs in place where employees can report issues confidentially.
Does the duty require employers to take steps to prevent sexual harassment by third parties?
Yes, because the employer owes the employee a “duty of care”.
The new legislation requires employers to ensure that they take action to prevent harassment of employees by a third party which includes a customer, consultant, sub- contractor, supplier, Non Exec Director, professional advisors.
Can such issues cause reputational damage to the business?
Absolutely – whilst most cases are managed and dealt with internally, if such issues go as far as an Employment Tribunal, the reputational damage through adverse publicity could be significant.
Also, many Companies will have specific accreditation relating to ISO Quality Management and they may find that suppliers want assurances that Companies with whom they do business are complying with the new legislation.
Conclusion
Taking action to prevent sexual harassment is not just a case of drafting some policies and sending a few Managers on a Training course – it is linked to the business culture where there is an expectation of certain professional behaviours and members of Senior Management teams must show leadership and lead from the front by setting a good example.
Adrian Berwick offers HR support to SMEs and GP Surgeries and if you want any advice or guidance on the issues raised in this article, please either contact me on 07885 714771 or adrian@abhrsolutions.co.uk
