Don’t hesitate – anticipate. The new duty to take reasonable steps to prevent sexual harassment
The #MeToo movement heralded a sea change for employers, with greater numbers of employees feeling galvanised to raise concerns of sexual harassment and bring it to their employer’s attention. Many employment lawyers have been busy since then assisting employers investigating what are often highly sensitive and emotive allegations.
This area of the law now faces further change, with a new section 40A to be added to the Equality Act 2010, on the 26 October 2024. This places a mandatory duty on employers to take “reasonable steps” to prevent sexual harassment of employees in the course of their employment.
In short, this means employers should not sit back and wait for complaints of sexual harassment to be brought to them. They should proactively and regularly anticipate scenarios when their employees may be subject to sexual harassment in the course of their employment and proactively take action to prevent such harassment taking place.
Key takeaways for employers:
As with the existing law on employee sexual harassment, employers can be vicariously liable (i.e. they become legally responsible if an employee sexually harasses another) unless the employer can show it has taken “all reasonable steps” to prevent the harassment.
Failure to comply with the new mandatory duty to take reasonable steps to prevent sexual harassment can see an Employment Tribunal uplift compensation by up to 25%.
Most employers will already have an anti-harassment policy in place and provide training to staff on what amounts to sexual harassment. The new mandatory duties mean employers should also think carefully about the nuances of their workplaces to anticipate where sexual harassment may occur – and document that thinking.
Some considerations:
- Are there power imbalances between employees that could be exploited? For example, apprentices or trainees dependent on the sign-off of a senior manager to qualify or remain in employment?
- Are staff exposed to colleagues or customers where lots of alcohol is being consumed? For example, is your staff Christmas party hosted at a venue where there will be many other third parties present, where alcohol will be consumed and the event will go on until the early hours?
- Are any staff particularly dependent upon their job and therefore less willing to raise a complaint of sexual harassment for fear of being seen as a troublemaker?
What is considered a “reasonable” step will depend on factors such as the employer’s size, its working environment and its resources. For example, a small employer that provides waiting staff for hospitality events is likely to be required to take more steps than a larger employer that only employs home workers.
Steps employers can take to comply with the new mandatory duty include:
- Consulting with staff and informing them that a zero-tolerance approach will be taken to sexual harassment, whether the harassment is by a colleague (of any seniority), or a customer, supplier or member of the public the employee comes into contact within the course of their employment.
- Encourage staff to report sexual harassment immediately – whether they are the recipients of it or witnesses to it. For example, for work social events publicise the mobile telephone number of a senior member of staff, so staff can report concerns by text message/WhatsApp. This would assist employees during a work event to make an immediate report of sexual harassment when they may not feel confident making the report in a manner that could be witnessed by the perpetrator. Complainants may feel more emboldened to make a contemporaneous report by text or WhatsApp, rather than the more confrontational convention of submitting a formal written complaint.
- Provide guidance to staff on how they can safely intervene if they witness sexual harassment taking place, reflecting the successful online movement “Breaking the Silence”. This can be as simple as a colleague having the confidence to calmly intervene and finding an excuse to remove the victim from the situation – for example saying something like: “There’s been an urgent call for you”, However, staff must be reminded never to put themselves in danger.
- Ensure the contracts for self-employed consultants and other third parties the employer engages with, reflect the employer’s zero-tolerance towards sexual harassment.
- When conducting client seminars, ticketed performances, awards ceremonies or similar – reflect the zero-tolerance culture in the terms and conditions of entry to the event.
Employers should review their anti-harassment policies now, not only to comply with the new section 40A duty, but also as Employment Tribunals like to see such policies reviewed regularly to ensure they remain up to date.
