New duty on employers to prevent sexual harassment

A new legal duty comes into force this month placing a positive obligation on all employers to take reasonable steps to prevent sexual harassment in the workplace.

The Equality and Human Rights Commission has published practical guidance on this ‘preventative duty’ and what employers need to be doing.

The guidance makes clear that this preventative duty covers not only harassment committed by another worker or agent of the employer but also third parties.  It is an anticipatory and ongoing duty and so employers are expected to anticipate the risks for employees of sexual harassment within their businesses, take action to prevent this and keep this under review.

An employer who breaches this duty can face enforcement action from the EHRC and, if an individual succeeds in a claim for sexual harassment, any compensation the employer is required to pay can be increased by up to 25%.

Risk Assessment and Action Plan

The guidance states that employers will unlikely be able to show compliance unless they have carried out a risk assessment.  This risk assessment will need to consider the risks of sexual harassment occurring, the steps that could be taken to reduce these risks and which steps would be reasonable for the employer to take.

Certain factors may increase the risk of sexual harassment occurring including a male-dominated workforce, a workplace culture that permits crude / sexist ‘banter’ or other disrespectful behaviour, gendered power imbalances (for example, where most junior staff are female and most senior staff are male) and workplaces that have lone or night working.

The guidance recommends that employers produce an action plan that sets out the preventative steps they will take and how this will be monitored (and that employers could consider making this available to workers or the general public).

What is Reasonable?

What is reasonable will vary from employer to employer and relevant factors will include the size and resources of the employer, the nature of the working environment, the sector the employer operates in and risks present in that workplace. Even if a step would not have prevented the sexual harassment, it may still have been reasonable to take.

Possible steps and how we can help

The guidance provides some examples and information on steps employers could consider taking, and we have highlighted some of the main ones below and how we can assist you.

• Policies: You need to have effective and well-communicated policies in place.  Workers must be able to understand what sexual harassment is, what they do if this happens and what you will do.  The guidance provides details of what a good anti-harassment policy will contain (which includes details of the new preventative duty and its approach to third party harassment).  We can assist you in reviewing your current policies and updating these in line with the new preventative duty.  This includes your anti-harassment policies but also your wider policies that may interact with this such as your disciplinary policy.
• Procedures: We can assist you in assessing your current procedures and updating these to reflect best practice.  This may include strengthening your existing procedures to ensure workers are aware of how to report harassment and what you will do once a report is received, or considering any wider measures that may be necessary, such as having dedicated support available, development plans in place or an anonymised telephone reporting line for harassment.
• Risk Assessments and Action Plan: As above, you must consider the risks and the reasonable steps you can take to reduce these.  We can help you with your risk assessment and in setting out a clear action plan for dealing with the risks identified.
• Training: Training should be provided to all staff to raise awareness of their rights, your expectations and anti-harassment policies.  You may need to consider more specific training for managers (to support them in identifying and dealing with complaints and supporting workers) and those conducting investigations taking into account the nature of the particular complaint.  Refresher training should also be provided at regular intervals.  This training should be tailored to the nature of your business and risks involved and, if third party harassment is identified as a potential risk, training on how to address these issues should be provided.  We can help you provide training to your staff at all levels.
• Feedback Mechanisms: You should consider how your policies and practices can be evaluated.  The guidance suggests you could keep centralised records that record the complaint in enough detail that trends can be identified.  We can assist you in preparing a report to ensure you keep an internal record of complaints received as well as providing advice on wider feedback mechanisms such as staff surveys or questions for exit questionnaires.
• Communications with third parties: If your workers come into contact with third parties or agents of yours then you will need to consider whether to send these persons a communication to advise of the company’s stance on tackling sexual harassment and that it will not be tolerated. You may also want this built into your commercial contracts with these parties if it is not already.  We can assist you with these communications and drafting.

The duty comes into force this month so please contact our employment team if you have any questions or need any support.