New duty on employers to take reasonable steps to prevent sexual harassment is imminent

What are the consequences of failing to comply with the new duty?

If an employer fails to comply with the new duty, they face a number of potential consequences.

• 1. Compensation: If a worker brings a successful claim for sexual harassment and compensation has been awarded, the Employment Tribunal must consider if and to what extent the employer has complied with the preventative duty. If it finds that the preventative duty has been breached, it can order a compensation uplift of up to 25%. The amount of the uplift must reflect the extent to which the employer has not complied with the preventative duty. Compensation for sexual harassment can be significant and can include compensation for both past and future loss of earnings, injury to feelings and in some cases, personal injury. It is important to be aware that an individual cannot bring a standalone claim for breach of the preventative duty itself.
• 2. Enforcement action by the EHRC: The EHRC have powers to take enforcement action against the employer and can carry out investigations, issue unlawful act notices and enter into a legally binding agreement with the employer to prevent future unlawful acts.

The new preventative duty is high-profile. In addition to the compensation uplift and possible EHRC enforcement action, employers failing to comply with it are likely to face adverse publicity, reputational damage and a potential impact on employee morale and retention.

Practical considerations for employers

These could include:

• Educating workers about sexual harassment and what actions amount to such conduct.

It is important to refer to the Equality Act 2010 definition and to give examples of unwanted sexual conduct. Employers should also educate their workers about how to avoid committing such conduct.

• Fostering an inclusive culture in the workplace.

Employers should consider whether there is a prevailing culture or any cultural power dynamics in the workplace. Considering this, employers will be informed of the best preventative measures to take. Implementing a zero-tolerance approach to sexual harassment will instil a respectful and inclusive environment for workers and is important in mitigating the risk of sexual harassment.

Fostering an inclusive culture can be done by running regular training sessions, communicating with staff on any changes or updates to policies, ensuring induction programmes provide effective training and emphasise a zero-tolerance approach to sexual harassment. As the Guidance states, management and senior leaders play a critical role in creating respectful workplaces that are free from harassment. They should “role model respectful behaviour and visibly promote a positive and inclusive workplace culture where harassment is taken seriously and not tolerated.”

• Implementing a clear anti-harassment policy.

It is important to encourage staff to report harassment and sexual harassment and to have an effective complaints procedure in place. The policy could state that the organisation takes a zero-tolerance stance on harassment and sexual harassment and that breach of the policy may lead to disciplinary action. Workers should be reminded about what behaviour amounts to harassment and sexual harassment.

Asking staff for their input on the current policies and preventive framework in the  organisation would also be effective to gauge the ideas of workers at different levels of seniority. This may reflect what risks they feel exposed to. Other policies should be reviewed and cross-referred to. For example, breach of the anti-harassment policy should be referred to as examples of misconduct or gross misconduct in the disciplinary policy. Finally, as with all policies, they should be publicised and easily accessible and reviewed regularly to monitor their effectiveness,

• Carrying out risk assessments.

The Guidance advises employers to consider the risks of sexual harassment occurring during employment, consider what steps it can take to mitigate those risks to prevent sexual harassment of their workers, consider which steps are deemed reasonable to take, and implement those steps.

The Guidance refers to various risk factors in the workplace including power imbalances, job insecurity, customer-facing duties and a lack of diversity. Specific risk factors that may increase the risk of sexual harassment include a male-dominated workforce, a workplace culture that permits crude/sexist “banter”, gendered-power imbalances and lone or isolated working.

Significantly, the Guidance states that employers are unlikely to be able to meet the preventative duty to take reasonable steps to prevent sexual harassment if they do not carry out a risk assessment. Further, employers should produce an action plan setting out what preventative steps they will take to address any identified risks and how that will be monitored. The Guidance also says that “the preventative duty is not static” and employers should review the steps they are taking on a regular basis in the light of their risk assessment.

Employers should also consider whether a worker alleged to have committed sexual harassment may pose a wider risk to other workers or third parties.

In such situations, methods such as suspension or a disciplinary process should be undertaken to mitigate any potential risk of sexual harassment posed by the worker.

• Providing training to workers and managers.

The Guidance recommends that training should be provided to workers about the different types of harassment that can occur together with training about victimisation.  The training should also cover how to raise complaints with separate training for managers who deal with complaints. The Guidance also recommends that the training is tailored for the nature of the employer and the target audience. Where third party harassment is a risk, the training should also address this.

Records should be kept of who has received training and crucially, it should be refreshed at regular intervals.

• Ensuring there are clear reporting methods of sexual harassment for workers and there is support in place for complainants.

Employers should ensure that all reporting channels for sexual harassment are clear for their workers. The reporting system could be in person or online or an independent telephone-based service where complaints could be raised on either a named or anonymous basis. An effective complaint handling process must be in place to ensure all complaints are investigated appropriately. As mentioned above, a clear anti-harassment policy is crucial to demonstrate a zero-tolerance stance on sexual harassment. Employers should also consider who will be the nominated contact to support the complainant. This may be based on gender or level of seniority. The contacts (internal or external) must be appropriate to support the complainant and they should receive suitable training to provide that support.

The Guidance recommends that employers keep centralised, confidential records of all concerns raised (informal and formal) so that trends can be identified.

• Detecting sexual harassment.

Employers should be proactive and look for warning signs in their workplace such as sickness absence, poor performance, a change in behaviours, resignations or comments made at exit interviews.

How we can help

The Employment team at Blake Morgan has extensive knowledge and experience in advising organisations on workplace issues, including sexual harassment. If you would like to discuss the new duty and the steps you should be taking to prevent sexual harassment, please contact a member of our Employment team for advice.

Useful links

• EHRC Technical Guidance
• 8-step guide