New sexual harassment prevention duty: 10-point checklist for HR

Author: Stephen Simpson

From 26 October 2024, employers of any size in England, Wales and Scotland have a specific duty to take reasonable steps to prevent sexual harassment of workers in the course of their employment. As the implementation date approaches, what should HR professionals be doing to ensure that their organisation is ready to comply with the new duty?

1. Understand the new duty to prevent sexual harassment

Employers must get to grips with the new legal position, which is contained in the Worker Protection (Amendment of Equality Act 2010) Act 2023 and the Equality and Human Rights Commission's updated guidance on sexual harassment and harassment at work.

The key to this is understanding that the new duty is an "anticipatory duty" designed to "transform workplace cultures", according to the EHRC.

It is particularly important for employers to understand that the law requires them to take proactive reasonable steps to prevent sexual harassment of their workers.

In other words, employers must anticipate situations in which workers may be subjected to sexual harassment in the course of employment and take action to prevent the harassment taking place.

2. Do not forget about potential third-party harassment

Employers need to pay particular attention to the risks of staff being subjected to third-party harassment, for example by customers and clients.

The new duty on employers is to take reasonable steps to prevent sexual harassment of their workers "in the course of their employment", which is wide enough to include harassment by a third party.

While an employer cannot be liable in an employment tribunal for third-party harassment, the EHRC has made it clear that it can tackle this issue by using its statutory enforcement powers against the employer.

Steps that an employer can take include:

• providing comprehensive training to staff on handling difficult interactions with third parties, setting boundaries, making bystander interventions and empowering individuals to remove themselves from difficult situations;
• giving additional training for managers so that they are able to support individuals who have been subjected to harassment by a third party; and
• ensuring that the organisation's zero tolerance approach to sexual harassment is communicated to third parties via email and notices displayed in public areas of the workplace.

3. Review your anti-harassment and anti-bullying policy

Employers must ensure that they have adopted a robust anti-harassment and anti-bullying policy that covers sexual harassment and is accessible to all staff.

The policy can set out:

• the employer's commitment to fostering an inclusive culture and eradicating bullying or harassment at work, including sexual harassment;
• a clear definition of what constitutes sexual harassment, with tailored examples;
• the consequences for perpetrators of sexual harassment, highlighting the potential for disciplinary action up to and including dismissal;
• what a worker should do to report sexual harassment if they are subjected to it in the course of their employment; and
• the employer's approach to third-party harassment.

To reflect the proactive nature of the new duty, employers could include in the policy the anticipatory measures that they take to prevent sexual harassment - see the Our commitment to you section in our model anti-harassment and anti-bullying policy.

4. Provide anti-harassment training for staff

It is all well and good for an employer to have a clear and accessible anti-harassment and anti-bullying policy in place, but it is worthless if it is not implemented at ground level.

In advance of the new duty, employers should review how they are delivering anti-harassment and anti-bullying training, which ideally should be provided to all workers.

It is particularly important that line managers receive training, as they are normally the people who are dealing with issues on the ground. Senior staff should not be exempt from training - they should be setting an example, especially if the employer's senior leadership lacks diversity, which can result in a significant power imbalance.

While employers should use the law change to look at their training, this should not be a one-off exercise. It is important to:

• monitor the training to ensure that it always reflects current terminology, case law and workplace trends; and
• ensure that a schedule is in place for training to be delivered to the existing workforce and that new recruits are required to take the training as part of their onboarding process.

5. Take on board what your workforce is telling you

The EHRC stresses the importance of taking steps to find out what is happening in the workplace so that sexual harassment can be snuffed out.

Data gathering is important here, for example by analysing the number of formal complaints that involved sexual harassment. It can be especially useful if the employer is able to use the data to identify sexual harassment hot-spots - are there departments or specific working environments where complaints are being raised more frequently?

The employer could also gather data via an anonymous survey, particularly as the number of formal complaints will not tell the whole story - for example, there will be complaints where the issue was resolved informally, or the problem may exist but no one has ever confronted it.

The EHRC also suggests that employers could:

• hold "lessons-learned sessions" once complaints have been resolved; and
• gather feedback provided through conversations with employees, for example via exit interviews.

 

 

6. Undertake sexual harassment risk assessments

It cannot be overstated how important it is for employers to get used to running sexual harassment risk assessments.

The EHRC has made the use of sexual harassment risk assessments central to its updated guidance on sexual harassment and harassment at work.

The guidance goes as far as to say that an employer is unlikely to be able to comply with the preventative duty if it does not carry out a risk assessment. This underlines  the critical role that risk assessments play as they enable employers to evaluate:

• the risk of workers being exposed to sexual harassment in the workplace; and
• the steps that can be taken to minimise those risks.

While employers can use our model Sexual harassment risk assessment form as a framework for their risk assessments, they need to adapt it to meet their own specific needs and identify risk factors that are relevant to their organisation.

Employers may need to run separate risk assessments for different parts of their organisation. For example, the risk factors in a public-facing working environment could be very different to those in a non-public-facing workplace.

Sexual harassment risk assessments should be reviewed and updated on a regular basis.

7. Take follow-up actions arising from risk assessments

Sexual harassment risk assessments can help to decide what steps the employer needs to take to minimise the risks identified.

The employer must take "reasonable" steps to prevent sexual harassment of their workers in the course of their employment to comply with the preventative duty.

What is "reasonable" will vary from employer to employer, but relevant factors include:

• the employer's size and resources available to it;
• the nature of the working environment;
• the risks present in the workplace;
• the nature of any interaction with third parties;
• the time, cost and potential disruption associated with taking a particular step weighed against its potential benefit; and
• whether concerns of sexual harassment have been raised with the employer.

The EHRC recommends that employers consider appointing a designated lead to take responsibility for implementing an action plan and complying with the preventative duty.

8. Have clear lines of reporting for incidents

It is vital to have a clear route in place for staff to report incidents of sexual harassment so that prompt action can be taken. The introduction of the new preventative duty is a good opportunity to review the reporting process.

While some complaints of sexual harassment against a colleague will inevitably lead to a formal complaint, employees should be given the option of raising the issue informally first. Not all complainants will want to go immediately down the formal route, given how difficult it can be to retain a positive working relationship with someone once you have raised a formal grievance against them.

Employees must be given the option to raise the issue with someone other than their immediate superior. This is in case the alleged perpetrator is their own manager.

Once a grievance has been raised, it is important that it is dealt with in a timely manner, with the key steps being:

• an investigation;
• a grievance hearing; and
• an opportunity to appeal if the complaint is not upheld.

The complaint should be dealt with in an objective and confidential way. This means that the right of the alleged perpetrator to be dealt with fairly must also be respected.

In relation to third-party harassment, staff should be given a route to report incidents that they have experienced - or witnessed - as soon as possible after the incident.

9. Continue to make the business case for prevention

While the introduction of the new duty is providing the impetus for employers to work more in the preventative space, this approach makes commercial sense anyway.

To ensure that anti-sexual harassment measures are taken seriously and properly resourced, HR needs to hammer home the business benefits to senior leadership.

When making the business case for preventative measures, HR professionals can stress that:

• victims of sexual harassment can feel undermined in their job performance, affecting their motivation, attendance levels and focus at work;
• those who witness the harassment can suffer too, given the anxiety that a toxic workplace culture can create;
• a toxic workplace culture is one that will not retain its people - dealing with high employee churn is time-consuming and expensive; and
• a reputation as an employer that does not take sexual harassment seriously can lead to disengagement from customers and clients, affecting the bottom line.

A negative reputation in this area can seriously damage an organisation's reputation and its employer brand.

Senior leaders should also be reminded of the costly and time-consuming nature of handling investigations into sexual harassment. If sexual harassment leads to legal action, a failure to prevent the harassment in the first place becomes even more costly.

10. Ensure focus on sexual harassment is not a one-off

Complying with the new duty is not a one-off exercise. Although many HR professionals will have 26 October 2024 etched in their diary, their employer's responsibility to comply with the duty continues after this date.

Employers need to continue to review and improve the measures the measures that they have put in place to prevent sexual harassment. This includes regularly:

• rerunning sexual harassment risk assessments;
• reviewing their anti-harassment and anti-bullying policy; and
• providing anti-harassment training for staff.