Last month I did a piece highlighting 5 things to bear in mind about the new duty to prevent sexual harassment. That new duty came into law on Saturday 26 October but we already know that it has a short shelf-life in its current form. So what more should employers be looking out for in this area?
Part of the Employment Rights Bill that was published by the Labour Government on 10 October lays out intended statutory amendments which would:-
- Make the Preventative Duty tougher, by making it a duty to take all reasonable steps not just a duty to take reasonable steps (which is implicitly a duty to take some reasonable steps);
- Introduce a right for the Government to pass legislation dictating what steps are "reasonable" steps. An indicator of what would be considered reasonable is laid out in the Employment Rights Bill: carrying out assessments "of a specified description" (which is likely to mean risk assessments), publishing plans or policies, and steps relating to the reporting of sexual harassment complaints and the handling of such complaints.
- Make sexual harassment complaints a new specific category of whistleblowing disclosure.
The work that employers should already have done to prepare for the current form of the Preventative Duty will not be wasted. Most employers who have consciously engaged with the Preventative Duty will likely already have implemented/updated the sorts of measures that the Government may seek to make mandatory in due course. However they ought to revisit the list of steps which they identified they could take and reassess those which they decided not to take. Under the expanded Preventative Duty, if those previously rejected steps are reasonable then they would need to be taken once the law in this area is amended again.
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