Amendment to the Worker protection (Amendment of the Equality Act 2010) Act 2023
The legal definition of sexual harassment is set out in the Equality Act 2010, most businesses are likely aware of the act and that they have a duty of care to their employees in the workplace. Sex-based harassment is related to unwanted behaviour based on sex, for example making derogatory jokes about women, creating a bullying or hostile environment based on sex, humiliating comments which violate an individuals dignity.
Sexual harassment has a definition which outlines unwanted sexual behaviour, such as touching someone without their consent and for example not promoting someone or giving them a pay rise because they reject unwanted sexual advances.
An employer is required by law to protect employees from harassment and the definition of an employee also includes job applicants, agency workers and self employed contractors. An employer must be able to demonstrate that they have taken all reasonable steps to prevent harassment from happening. However, it is not enough just to have a policy, employers must be able to show that the policy is embedded in the business through training all staff, they must also proactively deal with any complaints or suggestions that an employee is being harassed.
Employers have not been liable if a third party i.e client is the one harassing an employee although if they have been made aware of such behaviour they are expected to protect the employee or face potential discrimination charges.
On October 26th 2024 employers will be required to take “reasonable steps” to prevent sexual harassment and the law applies to people of any gender. So, what does this mean? The new duty is anticipatory meaning employers must take steps to act to stop any harassment before it happens and the change now also includes third parties.
An employee will be able to bring a claim for harassment including a breach of the preventive duty. If it is proven that an employer has not taken reasonable steps to prevent harassment then this could result in an uplift of up to 25% to any compensation award. Compensation awards for this type of harassment are not capped and therefore this additional % could be substantial.
It is unclear at this stage what will constitute “reasonable steps” however, employers must be able to demonstrate that they have taken steps to stop any sexual harassment before it happens and in the event it does happen must take immediate action to ensure it does not happen again.
So what can you do?
Undertake a risk assessment to foster a preventive culture and mitigate risks, for example reviewing and limiting contact outside work hours, such as whats app groups or social media.
Training managers, they are your first line of defence and need to understand what is expected of them, as well as having the confidence to tackle and deal with any issues and being able to recognise harassment.
Create a safe culture where values such as respect and dignity are modelled by leaders and are clear and consistent behaviours. Ensure there is a performance management system in place to deal with issues so that the whole workforce understands what is expected.
Deal with allegations swiftly and fairly, ensure you have a robust procedure for dealing with allegations as well as ensuring employees know where to raise complaints in a confidential manner. Ensure that any learnings are implemented so that there are no repeat incidents.
Need to update your currently policy, or undertake a risk assessment or roll out training? For all this and more contact me at bev@bdhr.co.uk.
