New Positive Duty to Prevent Sexual Harassment at Work – Are You Ready?

24 Sep

Our employment team discusses the New Positive Duty and how it prevents Sexual Harassment in the workplace. Read here for more.

In brief

·        In the wake of the #MeToo movement and a host of high-profile scandals, the new legislation is designed to improve protections from sexual harassment in the workplace.

·        On 26 October 2024, a new proactive duty on employers to take “reasonable steps” to prevent sexual harassment in the workplace comes into force.

·        If a successful claim for sexual harassment is made against an employer, the Employment Tribunal is required to also consider whether the employer has met the above duty and it has the power to uplift sexual harassment compensation by up to 25% if it finds the duty has not been met.

·        The Equality and Human Rights Commission (EHRC) is being given the power to enforce the duty which may include conducting investigations and intervening in disputes.

The current framework

The Equality Act 2010 already provides protection against sexual harassment in the workplace. This allows the Employment Tribunal to find an employer vicariously liable for acts of sexual harassment carried out by their employees. Currently, the Equality Act provides employers with a potential defence to sexual harassment claims where they have taken all reasonable steps to prevent the harassment.

So what’s different?

The new law  imposes a new positive duty on an employer to take reasonable steps to prevent their employees from experiencing sexual harassment in the course of their employment.

In the event of a successful claim for sexual harassment being made, a tribunal will need to consider whether the employer has met this new duty and any failure may have financial and reputational implications. In addition, the ECHR can investigate and consider whether an employer is meeting its duty, regardless of any claim for sexual harassment being made.

Reasonable steps?

What a Tribunal will consider as “reasonable” steps will depend on the facts and circumstances, for instance, the Tribunal may take into account the size and scale of the employer.

For the moment what constitutes reasonable steps is a bit of an unknown… we understand a new EHRC code of practice is in the works, so watch this space!

In the meantime, there are certain recommended steps which you can already put into place to assist in this situation. These include:

·        Risk assessments to consider the risk of sexual harassment taking place in your workplace, the existing steps being taken to address this and any potential gaps.

·        Comprehensive and clear anti-harassment policy and reporting procedure which must be communicated to employees and monitored and enforced as necessary.

·        Robust training for all employees so that they understand the company’s policies and expected standards of behaviour and are able to recognise and, if needed, report workplace harassment.

·        Targeted training for managers and other persons who are responsible for implementing anti-harassment reporting and investigation systems.

·        Other steps to foster a workplace culture which encourages open and honest dialogue about potential issues relating to sexual harassment.

If you would like us to review your current policies and procedures or assist with preparing/delivering training to help ensure your business meets its duties, please do reach out to our employment team: Hadie Cohen, Ollie Harris or Sarah-Beth Neville.