New Duty for Employers to Prevent Sexual Harassment
On 26th October, the new and much-heralded legislation, creating a positive duty for employers to take steps to prevent sexual harassment, came into force. Since our last newsletter on the subject, the Equality & Human Rights Commission (EHRC) has published its updated technical guidance on sexual harassment and a very helpful 8-step guide for employers (Guide).
New sections 40A and 124A of the Equality Act 2010 have come into force.
Employers are now under a duty to take reasonable steps to prevent their employees from being sexually harassed during the course of their employment (section 40A). An objective test will be used to judge whether an employer has taken reasonable steps (or not) and this will depend on all the facts and circumstances of the situation. Furthermore, employment tribunals will be able to award an uplift of up to 25% to compensation for discrimination, where they find that there has been a breach of that duty (section 124A). The duty only applies to sexual harassment, not to any other form of harassment related to a protected characteristic.
The EHRC consulted on proposed amendments to its technical guidance to reflect these changes and published the final version on 26 September 2024. Alongside the technical guidance, it also published its eight-step Guide.
The eight steps are not an exhaustive list but do provide employers with a path to follow which will help them take positive action to prevent sexual harassment in the workplace and hence avoid liability under the new legislation. The eight steps are:
- Developing an effective anti-harassment policy
- Engaging with staff
- Assessing and taking steps to reduce workplace risk
- Reporting
- Training
- Handling harassment complaints
- Dealing with third-party harassment
- Monitoring and evaluating actions
The Guidance suggests that without carrying out a risk assessment, an employer is unlikely to comply with the preventative duty. If you do not have a suitable risk assessment, we would be happy to draft one for you that is tailored to your business.
If you have any questions about how this new duty will affect you and your business or would like us to draft or update your anti-sexual harassment policy, do not hesitate to get in touch.
To read the guidance in full, follow the links below:
Sexual harassment and harassment at work: technical guidance | EHRC (equalityhumanrights.com)
Employer 8-step guide: Preventing sexual harassment at work | EHRC (equalityhumanrights.com)
