Employers in England, Scotland and Wales have a new obligation to prevent sexual harassment | Ogletree, Deakins, Nash, Smoak & Stewart, PC

(co-author: Lorraine Matthews)

From October 26, 2024, employers in England, Scotland and Wales will have a new obligation to take “reasonable steps” to prevent sexual harassment of employees during their employment. Details of this obligation are contained in the Worker Protection (Amendment of Equality Act 2010) Act 2023.

Quick hits

• The Equality and Human Rights Commission (EHRC) published technical guidance for employers on 26 September 2024, following a short consultation on a draft version earlier this year. In addition to the full guidance, the EHRC has produced the 8-step guide for employers: Preventing sexual harassment at work.
• Under the law, employers will be held responsible for addressing sexual harassment after it has occurred and for proactively mitigating the risk of such behavior occurring.
• The new steps will complement existing provisions in the Equality Act 2010, which protects employees from discrimination, harassment and victimization.
• The preventive duty of sexual harassment applies to all employers, regardless of their size.

Employers will have a preventive duty in the area of ​​sexual harassment, which means that employers must now anticipate scenarios in which sexual harassment may occur. “Sexual harassment” is defined as “unwelcome conduct of a sexual nature that has the purpose or effect of violating the dignity of an employee, or creating an intimidating, hostile, humiliating, humiliating or offensive environment for that employee.” This behavior may include unwanted sexual advances, physical contact, sexual comments or jokes, or sending sexually explicit messages or images. The preventive duty requires employers to take reasonable steps to prevent harassment and intimidation by third parties, such as customers, suppliers or patients, between employees. Employers will have to demonstrate what specific measures they have taken to comply with their legal obligation.

EHRC guidance: reasonable steps

The EHRC has provided guidance setting out eight practical steps that employers can take to help take positive action. These include assessing the effectiveness of policies and procedures, dealing with staff, ensuring adequate and regular training of staff, establishing reporting channels (such as an anonymous online reporting system), keeping a record of all reported cases of sexual harassment and checking the data regularly. .

Under the EHRC guidelines, what is considered “reasonable” will vary from employer to employer. Although ‘reasonableness’ is an objective test that varies based on the specifics of each case, the ECHR sets out relevant factors to be taken into account when making an assessment. These include the size and resources of the employer, the impact of a specific action, the existence of sexual harassment concerns, any applicable legal standards, and the effectiveness or ineffectiveness of previous actions.

The EHRC encourages every employer to:

• “consider the risks of sexual harassment during employment”;
• “consider what steps it could take to reduce these risks and prevent sexual harassment of their employees”;
• “consider which of these steps it would be reasonable to take”; And
• “implement those reasonable steps.”

Enforcement action

The EHRC can take enforcement action against an employer who has failed to comply with the obligation under the law to prevent sexual harassment. If no preventive measures have been taken, employees can raise their concerns with a trade union or the ECHR, even if no incident of sexual harassment has occurred. The ECHR has the power to investigate employers, require an employer to submit an action plan, enter into a formal, legally binding agreement with an employer to prevent future unlawful acts, and/or apply for an injunction to prevent an employer from committing an unlawful act. action.

If an employment tribunal finds that there has been sexual harassment of an employee and awards damages, the tribunal can increase those damages by up to 25 percent if it believes that an employer has breached its preventive duty.

Next steps

In light of the EHRC’s recommended guidance, employers may wish to take this opportunity to review their employees’ sexual harassment training: is it sufficient and/or does it need to be updated and re-delivered? In addition, employers may consider revising an existing sexual harassment policy and/or implementing a new written policy.