Are You Ready For The New Duty To Prevent Sexual Harassment?

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Herrington Carmichael

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Herrington Carmichael is a full-service law firm offering legal advice to UK and international businesses. We work with corporate entities of all sizes from large PLCs through to start-up businesses.
With only three weeks to go until the Worker Protection Act 2024 comes into force on 26 October 2024, it's now critical that employers are getting to grips with the practical impact this change in the law will have.
United Kingdom Employment and HR

With only three weeks to go until the Worker Protection Act 2024 comes into force on 26 October 2024, it's now critical that employers are getting to grips with the practical impact this change in the law will have. The Act will introduce new and significant obligations, in the form of this positive duty to prevent and deal with sexual harassment in the workplace.

The Act has come into force against the backdrop of broader societal efforts to combat sexual harassment or sexual misconduct. With a particular focus on misogyny and sexism, which movements such as #MeToo and the FCA's Sexism and the City enquiry have been highlighting. These campaigns have exposed that sexual harassment in the workplace remains an issue for many employers and employees alike. These campaigns have been reinforced by a steady stream of high-profile sexual harassment cases with Harrods being the most recent. The Act therefore intends to address the need for stronger deterrents introduces preventive measures to create safer work environments for all.

What does the Act actually require?

Essentially this new proactive preventative duty will require employers to anticipate how sexual harassment might happen in their workplace(s) and take "reasonable steps" to prevent it from occurring. It means that employers will now have to do more to proactively prevent sexual harassment, rather than having processes in place to handle it once it has taken place. /p>

The new Act is focusing on prevention, rather than cure and, as such, it will apply to all employers, whether they have 1 or 1,000 employees. The only differentiation will be in what steps will be considered "reasonable", which will change depending on the employer's size. Fundamentally, bigger employers will be held to a higher standard of what "reasonable" looks like and will ultimately have to implement more steps than a smaller employer to demonstrate compliance with the Act.

While there won't be a standalone claim for employees to bring if an employer fails to take reasonable steps to prevent sexual harassment, failure to comply with the new duty could come at a significant financial cost. Notwithstanding the potential damage to an employer's reputation and, of course, the potential harm that has been caused to an employee on an individual level. Employers who fail to take reasonable steps to prevent sexual harassment could face an increase of up to 25% in any compensation awarded to the claimant. This change is significant, considering the uplift will apply even if sexual harassment is only incidental to the original tribunal claim.

Further, given the updates to the extensive technical guidance and the 8 step guide for prevention that have just been released, it is expected that the Equality and Human Rights Commission (EHRC) will be taking an active role in enforcing compliance, including investigating cases where employers are suspected of not fulfilling their duties. In serious cases, the EHRC will have the power to impose sanctions or initiate legal proceedings.

So, what should employers be doing?

The Act places a duty on employers to take reasonable steps to prevent sexual harassment in the workforce As a result, employers must actively take steps to comply with the new regulations. A generic template policy or tick-box exercise are not going to be sufficient to demonstrate reasonable steps have been taken. While there is no one-size fits all approach, as what reasonable steps will look like will vary depending on a multitude of factors, including employer size, particular risks in some sectors over others and different company cultures, the 5 key starting points for all employers will be:

  • Audit risk – employers will need to ensure that anything they put into place to take reasonable steps adequately addresses the key risk spaces for sexual harassment in their business. Employers will need to carry out a detailed risk assessment to identify issues particular to their organisation so that steps can be taken to deal with those.
  • Implement a standalone sexual harassment policy – Simply rehashing previous anti-bullying and harassment policies is unlikely to be enough and combining an existing policy with some additional wording for sexual harassment, is also going to be a difficult exercise, given the extent and scope of the EHRC technical guidance. Something more tailored and specific needs to be put in place We have created a comprehensive policy that we can work with you on to tailor so that it works for your business and sets the standard.
  • Engaging staff – This will assist employers understand where any potential issues lie and whether the steps it is taking are having an effect. Employers will need to consider regular 1-2-1s, running staff surveys and exit interviews alongside having an open-door policy.
  • Training – Employment Tribunals will want to see that training is regular, relevant, and refreshed. Whilst there will still be a need to train all employees, there is going to be a requirement for focused training for cohorts e.g., Line managers on how to deal with complaints when they are raised. A particular need will be for Board level training, to set the standard from the top and to ensure the Board understands how important this is. This will be a crucial 'reasonable step' to show a Tribunal.
  • Ensuring top-down communication – Employers should also consider how their approach to preventing sexual harassment is positioned with its workforce. Communications from the Board should also be considered and curating that message so it aligns with the steps taken above, will be critical.

While there are many other elements to consider, such as reporting and investigation procedures, as well as thinking about the potential for third-party harassment in your business, and regular evaluation of how the steps being taken are working, these are the critical starting points that we recommend all employers start looking at now. With the law coming into force in just over 3 weeks, now is the time to progress how you're going to prepare for and deal with the new positive duty to prevent sexual harassment.

How can we help?

The Worker Protection Act 2023 introduces robust measures to tackle workplace harassment and discrimination representing a clear signal of the need to protect workers from inappropriate behaviour in the workplace. For employers, the Act will have far-reaching implications.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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