The New Duty to Prevent Sexual Harassment in the Workplace

Before we take a closer look at the new duty and what steps employers should take to comply with it, it is important that employers understand exactly what sexual harassment is and what sort of actions it can amount to.

What is Sexual Harassment?

Under the Equality Act 2010, employees are protected against sexual harassment at work.

Individuals are sexually harassed when they are subjected to unwanted behaviour of a sexual nature which has the effect of either:

• Violating someone’s dignity; or
• Creating an intimidating, hostile, degrading, humiliating or offensive environment for someone.

Some examples of sexual harassment might include (but are not limited to):

• Making sexual jokes or comments
• Staring
• Making sexual remarks or comments about someone’s body, clothes or appearance
• Touching someone without their consent
• Sharing pornographic and/or sexual images

The unwanted act can happen in or outside of the usual workplace setting.

The New Duty

Traditionally, anti-sexual harassment policies focussed on addressing the wrongdoing after the unwanted act has taken place. However, the new legislation places a duty on employers requiring them to take proactive measures to prevent sexual harassment from occurring in the workplace.

The new duty is part of a broader culture shift when it comes to sexual harassment in the workplace and the recognition that it is part of a broader systemic issue. It’s time for employers to take responsibility for the safety of their staff and adopt a zero-tolerance approach when it comes to sexual harassment.

The Equality and Human Rights Commission have issued some guidance for employers on the new duty. In particular, the Commission stress that the duty is an anticipatory one; employers should not be waiting for the act of sexual harassment to take place to take steps to address the issue.

Failure to Comply

If the employer fails to take reasonable steps to prevent sexual harassment the following consequences may apply:

• The Equality and Human Rights Commission has the power to take enforcement action against the employer; and
• If an individual succeeds in a claim for sexual harassment and the preventative duty has been breached, an employment tribunal can increase the employee’s financial compensation by up to 25%.

What Steps Should Employers Take?

In light of the above, it is extremely important that employers consider taking the following practical steps to ensure they are complying with the duty:

1. Robust Training and Awareness

• Ensure that you provide regular and mandatory training and education to all employees (including management staff) regarding identifying, preventing and addressing sexual harassment.
• Make sure you refresh your training at regular intervals and when you take on new members of staff.
• Tailor the training to the realities of your specific workplace.
• Ensure you keep records of all training that has taken place.
• Acas have provided useful guidance which gives a list of factors that your employees should be aware of, to include the law on sexual harassment, what behaviours are unacceptable at work and how you will handle a sexual harassment complaint.

2. Anti-Harassment Policy

• At the very least, you should ensure that you have an anti-harassment policy in place. This must be proactive and not simply reactive.
• Ensure that the policy sets out exactly what constitutes as harassment and the consequences of this.
• Also ensure all other policies are up to date (i.e. grievance and disciplinary procedures) to reflect the new duty

3. Active Monitoring and Evaluation

• Following training, you should ensure you are thoroughly monitoring the workplace and collecting feedback from employees – consider how safe they feel and whether they think there is a zero-tolerance approach.

4. Reporting Procedures

• Ensure you have a robust reporting procedure in place.
• Employees must be aware of this procedure and how to make a complaint.
• Management staff should ensure they are setting the tone for a zero-tolerance approach by taking complaints seriously and following the correct procedure.
• Procedures should be victim centred.

The new duty is a step in the right direction to ensuring workplaces are safe and more inclusive.

Now is the time for employers to demonstrate their commitment to equality and combating sexual harassment by taking proactive steps to comply with the duty.

How can Ellis Jones help?

If you require assistance in relation to the new duty  or  any other employment law or HR matter, please do contact us on 01202 525333 or by email at employment@ellisjones.co.uk, one of our team would be very happy to assist you.

We also run a monthly, free HR forum in conjunction with Rubicon People, it is free to join and an invaluable way to stay up to date with changes to employment law and HR. If you would like to attend, place contact employment@ellisjones.co.uk.