Reasonable Steps to Prevent Sexual Harassment

Sexual harassment in the workplace is not a new problem, with the TUC survey reporting that two in three young women have experienced it and I myself have acted for the employer in tribunal claims or have independently investigated a number of grievances and over the last 15 years. Whilst there are existing legal protections against harassment and employer liabilities under the Equality Act 2010 (ss. 26, 40, & 109), there have been persistent reports and discussions about the effectiveness of anti-harassment law.  

Over recent years, there has also been a heightened awareness and hardening attitudes in the wake of as #MeToo and many other high profile sexual harassment scandals.   

What has changed?

From the 26th of October 2024, all employers will be under a statutory duty, essentially a new positive obligation, under to take reasonable steps to prevent sexual harassment.  

The Worker Protection (Amendment of Equality Act) Act 2023 (inserting new section 40A), states:  

“An employer (A) must take reasonable steps to prevent sexual harassment of employees of A in the course of their employment.” 

New section 40 A(2) defines “sexual harassment” as that described in current section 26(2): 

1. unwanted conduct of a sexual nature,… 
2. the unwanted conduct the purpose or effect of (i) violating the worker’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for the worker, and (iv) the worker is treated less favourably because they submitted to, or rejected the unwanted conduct (s. 23(3)).  

What are the reasonable steps?

The statutory duty does not require the employer to take “all reasonable steps”. However, what is considered a reasonable step for an employer to have taken, will depend on the circumstances of each individual case and may vary from employer to employer depending on the size, nature and resources of the employer. It is an objective test, but steps may include: 

Have in place effective policies and procedures (and evaluate effectiveness, if possible): 

1.  You should put in place an Equality Opportunities Policy or an Anti-harassment Policy and whistleblowing Policy which (i) clearly distinguishes between different forms of harassment (or update existing policies), (ii) include clear definitions of harassment, (iii) measures to tackle the harassment and (iv) how the policy interacts with other policies.    
2. Annual review of policies and procedures and keep staff updated.  
3. Centralised record of complaints to analyse trends and/or anonymised staff surveys and/or lessons learned once complaints resolved. 

 Ensure awareness of policies: 

1. Reference policies in contract of employment  
2. Tell workers (employees, workers, agency workers and consultants) about the policies in induction and if they raise an issue.   
3. Ensure policies freely available to workers and provide copies to those cannot access the internal system.  
4. Share with other organisations that supply workers and services.

Training:  

1. providing sufficient and regular training to staff and managers 
2. keep a record of those who have received training and ensure this is refreshed.  
3. Train workers in supporting individuals who have experienced harassment.  

 Promote culture of transparency:

1. Give workers every opportunity to raise issues (one-to-ones, personal meetings, return to work meetings, and exit interviews) 
2. Deal with complaints promptly, efficiently and sensitively. 
3. Confidential reporting process.  
4. Positive steps may include or improve representation, tackle bias, provide training on diversity and inclusion.  
5. Undertake risk assessments of workplace and management frameworks.  

Employers should continue to review whether there are any further practical steps for them to take, in those circumstances.  

What is the risk?

Complaints of sexual harassment need to be managed safely, sensitively and should consider the full extent of the complaints appropriately. Employers should be aware that conduct of a sexual nature includes a wide range of behaviour (and may include the behaviour of two or more different people) and does not need to be sexually motivated. Furthermore, the person responsible for the unwanted conduct may be of the same or different sex.  

If an employer fails to comply with its statutory duty, section 40A(3) provide for two routes for enforceability: 

1. Employees can bring a claim (currently within three months) against their employer and include the breach of statutory duty in a wider claim of sexual harassment. Successful claims will be subject to a compensation uplift to 25%.  
2. The Equality and Human Right Commission has the enforcement powers for standalone breached.  

How can Spencer West help?

Putting in place the reasonable steps can be time consuming, we can save you management time and expense and free you focus on imbedding the practices and improving your workplace culture which can assist with increased productivity of staff.  

At Spencer West, we can support you with new policies or a review of your suite of documents or assist with any disputes.