A new mandatory duty to take reasonable steps to prevent sexual harassment is coming into force in October 2024. In this guide, we cover the basic legal principles surrounding sexual harassment and what the changes will mean for your business. We also explain the steps you can take now to prepare for the new rules.
Contents:
- What is sexual harassment and who is protected?
- What are some examples of sexual harassment?
- What’s changing and when?
- Will there be any consequences for getting it wrong?
- What can we do to prepare?
- What if we already have policies and procedures dealing with sexual harassment?
- What can we do if we receive a sexual harassment complaint?
- Next steps
What is sexual harassment and who is protected?
Sexual harassment is one of the most sensitive employee relations issues you can face as a business owner or HR professional and it can involve anyone from junior employees to senior management. It’s become highly topical for HR practitioners in recent years following the #MeToo movement in 2017, with employers understandably expected to take a more robust approach to sexual harassment complaints.
There have been various developments designed to improve worker rights and reduce the harm caused by sexual harassment at work. This has included increased scrutiny of the use of non-disclosure agreements for sexual harassment claims. Unfortunately, research suggests that sexual harassment is still common in UK workplaces. A recent poll by the TUC found that 58% of all women had experienced sexual harassment in the workplace at some point, rising to 62% of women aged between 25 and 34.
Beyond the general protection against discrimination and harassment related to a protected characteristic, the Equality Act 2010 (EqA 2010) provides specific protection to workers against sexual harassment.EqA 2010 defines sexual harassment as:
- unwanted conduct of a sexual nature
- that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
It is also unlawful under EqA 2010 to treat an employee less favourably because the employee rejected or submitted to unwanted conduct of a sexual nature or that is related to gender reassignment or sex.
EqA 2010 protects a broad range of individuals against sexual harassment. This includes all employees, workers, apprentices and agency workers. It also includes job applicants, meaning recruitment processes must also be free of any sexual harassment.
What are some examples of sexual harassment?
Sexual harassment can come in many forms, from clearly physical conduct to more subtle conduct that is sexual in nature such as ‘banter’. To help employers understand what can amount to sexual harassment, the Equality and Human Rights Commission (EHRC) has published guidance on sexual harassment at work. Common examples of sexual harassment include:
- Engaging in physical behaviour that is sexual in nature.
- Making sexual comments or jokes about someone.
- Looking, staring or leering at someone.
- Making propositions or sexual advances towards someone.
- Displaying sexually graphic pictures, posters or photos.
- Asking intrusive questions about a person’s private or sex life.
For example, a worker may sexually harass a co-worker by sharing pornographic images at work that the co-worker does not wish to see. Sexual harassment may also occur where a manager denies a team member’s promotion because the team member turned down the manager’s sexual advances at a work-related party. The actions of the harasser are also likely to amount to workplace misconduct which will need to be addressed in parallel with a sexual harassment investigation.
A worker’s conduct will still amount to sexual harassment even if there is no sexual motivation on the part of the accused. As long as the conduct is of a sexual nature and meets the other requirements of the definition of sexual harassment, it will be sexual harassment. The guidance is also clear that sexual harassment can occur when the conduct comes from someone of the same or a different sex, meaning sexual harassment cases may not always involve, for example, a male accused and female victim (although research confirms this is the most common pattern of sexual harassment).
Sexual harassment does not include conduct that is consensual, invited or mutual as the conduct has to be ‘unwanted’ in order to be sexual harassment.
What’s changing and when?
Changes are coming into effect in October this year and will require employers to take a far more proactive approach to dealing with sexual harassment in the workplace. From 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 will:
- introduce a new mandatory duty on employers to take proactive reasonable steps to prevent sexual harassment of employees; and
- give employment tribunals the power to uplift sexual harassment compensation by up to 25% where an employer has breached the new mandatory duty.
This means that employers will be under a positive duty to prevent sexual harassment.
Currently, there is no proactive requirement for employers to prevent sexual harassment - employment laws simply provide a curative remedy to employees who have been sexually harassed by allowing them to bring employment claims, and giving employers a defence to those claims where they can show they took reasonable steps to prevent the harassment. The new law means employers will need to take reasonable steps to prevent sexual harassment from ever occuring in the first place.
Will there be any consequences for getting it wrong?
Yes - there could be serious consequences for failing to comply with the new mandatory duty.
The EHRC has a wide range of enforcement powers they will be able to use to enforce the new duty against employers, including conducting external investigations into an employer’s breach of the duty, requiring disclosure of relevant evidence, and issuing unlawful act notices.
Additionally, if an employee brings an employment tribunal claim alleging sexual harassment, an employment tribunal can uplift any compensation awarded to an employee by up to 25%.
In either case there is also the reputational damage for employers to consider. It’s therefore crucial for employers to generally comply with equality laws and to take steps now to prepare for the new mandatory duty.
What can we do to prepare?
So far, it’s not explicitly clear what the new mandatory duty will involve. The EHRC expects to update its technical guidance in the coming months, and we’ll keep you updated on the developments. However, it’s likely the new duty will involve the following:
- Specific sexual harassment policies. A general policy on discrimination or harassment is unlikely to be enough to comply with the new duty. Employers are likely to need a standalone sexual harassment policy. It will be important to show that the policy is regularly reviewed and accessible to all staff.
- Regular training on sexual harassment. Specific training on what constitutes sexual harassment and how staff can make complaints is likely to be helpful when complying with the new mandatory duty. As with any discrimination training, it’s important to make sure that training never becomes ‘stale’ or a tick-box exercise. Workshops and external training can really help to keep your training up to date and dynamic, something our employment lawyers regularly support.
- A company culture that promotes safety. A zero-tolerance company culture is likely to be something your senior leaders will need to promote from the top through clear and effective communications. This could include reminders about behavioural expectations from your senior leaders at town-hall meetings or from line managers during weekly stand-up meetings.
- Transparency and reporting lines. As with whistleblowing, it’s important to have readily available and accessible channels to disclose incidents of workplace wrongdoing, including sexual harassment. This should be set out in your sexual harassment policy and made available on your company’s intranet site.
- Addressing power imbalances. Research by the EHRC suggests that most perpetrators of sexual harassment are senior colleagues, meaning power imbalances can be a source of sexual harassment. HR teams will need to be prepared to confront harassment alleged against individuals in positions of power, including senior leaders.
- Risk assessments and audits. It will be important for businesses to understand where the risks of sexual harassment lie within the organisation. Many HR teams commonly use workplace surveys to gather insights into matters such as staff morale and sentiment. Anonymous surveys could also be used to gather insights on sexual harassment risks within your business, although you will need to decide whether this is appropriate for your business.
- Preventing third party harassment. There have been indications that the new mandatory duty to prevent sexual harassment may include preventing harassment of staff by third parties. This might include preventing harassment by your customers and suppliers, as well as other people your staff interact with (eg visitors to your premises).
- Investigating complaints. Any complaints of sexual harassment should be investigated promptly and thoroughly. Employers will need to monitor the progress of investigations as well as whether any employees become repeat offenders. Employers will also need to ensure that complainants do not become the subject of victimisation for raising a sexual harassment complaint.
- Supporting staff. Employers might consider more visible support and assistance within their workplace through the use of workplace ‘champions’ who can support and advise staff confidentially about sexual harassment complaints. Some organisations already use this type of support in other contexts (eg mental health first aiders). The idea is to provide a sounding board for employees who may be apprehensive about going straight to HR. At the same time, workplace champions should never be an alternative to formal HR intervention where there is a complaint of sexual harassment and so champions must be prepared to encourage victims to escalate matters when it’s appropriate and safe to do so.
What if we already have policies and procedures dealing with sexual harassment?
Many employers will already have policies and procedures in place to deal with sexual harassment complaints. While this might mean employers are currently compliant, this might not be enough to comply with the new mandatory duty which requires a more proactive approach. It’s important employers review their current practices and seek legal advice from an employment lawyer if changes need to be made.
What can we do if we receive a sexual harassment complaint?
If you receive a complaint of sexual harassment (whether before or after the new mandatory duty comes into force) you should investigate it promptly and thoroughly. This means meeting all relevant witnesses, gathering the relevant facts and preparing an investigation report and outcome.
Sexual harassment investigations are particularly sensitive and may require some additional steps above and beyond a normal workplace investigation. This is likely to include consideration as to the gender of the investigator, how you will preserve anonymity for those involved and whether you need to put in place any safeguards to protect staff while the investigation takes place (eg temporary suspension of the accused or reassigning staff to different teams).
Our article on managing internal investigations is a good starting point for employers faced with a sexual harassment complaint. We also recommend seeking legal advice from one of our employment law solicitors because of the higher risks to your business that can arise in sexual harassment cases and the nuanced approach needed in this context.
If an investigation finds evidence of sexual harassment, you will need to consider the disciplinary consequences for the perpetrator. For the victim, you will likely need to take steps to safeguard their wellbeing and ensure they are not at risk of retaliation. You will also need to consider the steps you can take to prevent sexual harassment happening again. This could include changes at a policy and company culture level, for example through more visible preventative measures (eg regularly updated training and reporting lines).
Next steps
We will be closely monitoring updates around the new mandatory duty to prevent sexual harassment. You can stay tuned by attending our webinars and subscribing to our newsletter as we will be sharing further details as they become clear. Our employment law solicitors have extensive experience supporting employers with sexual harassment complaints and are also on hand to support you with any measures you need to put in place to comply with the new duty.
