In summary:
1. The duty will require employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment; and
2. Employment Tribunals will have the power to uplift sexual harassment compensation by up to 25% where an employer is found to have breached this new duty.
What does reasonable steps mean?
The Equality and Human Rights Commission has published technical guidance on this point and which includes a long, non-exhaustive list, of factors to help employers decide whether a step may be reasonable in the circumstances. The guidance also makes clear that employers should reflect on their culture and track record when determining what steps may be reasonable.
Alongside the guidance, the EHRC has also published an “Employer 8-step guide: Preventing sexual harassment at work”.
In essence, however, employers will need to show that they took proactive steps to protect employees and this will mean more than simply having an anti-harassment policy in place and carrying out annual training. Employers should now be preparing for this new duty in order to take ownership of their strategy to actively present sexual harassment in a custom-made and effective way. Employers will need to move away from the old system of taking action when a sexual harassment complaint lands on their desk, and instead they will be expected to take proactive steps in preventing it from happening in the first place.
What steps should employers be taking?
- Conduct of senior managers and those in leadership roles must set the tone for the businesses approach to sexual harassment. Senior leadership should be seen to uphold clear expectations about appropriate behaviour in the workplace. Ensure that agendas at senior management / board level include sexual harassment as a topic for discussion so that regular updates can be shared together with any immediate progress, long-term goals, identified risks and how to address these.
- Identify areas of weakness – begin by assessing how many complaints (if any) of sexual harassment have been made in the last 2 years. What were the contributing factors in those complaints? Are you able to identify if there are individuals or particular groups who are more at risk than others? What immediate and ongoing steps can be taken to reduce those risks?
- Consult with employees on an individual basis – certain factors and workplace settings can highlight issues, which at first glance may not be obvious, but which can influence or at least increase the risk of sexual harassment occurring in the workplace.
- Redesign existing workplace training and policies – consider setting out in basic terms, what is considered unlawful behaviour for the purposes of sexual harassment and the types of behaviour which are considered to be acceptable in the workplace (giving real life examples). Employers must do more than setting out the legal definition of sexual harassment.
- Identify a champion – ideally someone who wants to take on the role and who can create a team that extends across all sectors of the business. Consider setting reasonable targets whilst ensuring quarterly or half year updates are presented to those at leadership / board level.
