Getting to grips with your legal duty to prevent sexual harassment

How can employers prevent sexual harassment from happening in their organisation? Here’s some key details from Stephenie Linham’s new course, next taking place on Tuesday 22 July.

Let’s start with the basics: What is sexual harassment?

Sexual harassment is unwanted behaviour of a sexual nature. It can happen to men, women and people of any gender identity or sexual orientation. It can be carried out by anyone of the same sex, a different sex or anyone of any gender identity.

To be sexual harassment, the unwanted behaviour must have either:

violated someone’s dignity or
created an intimidating, hostile, degrading, humiliating or offensive environment for someone

Understanding the Equality Act 2010

Employers have a duty of care to look after the wellbeing of their employees. The Equality Act 2010 was the law that covered sexual harassment at work until recently and protects the following people.

Employees and workers
Contractors and self-employed people hired to personally do the work
Job applicants

What does the Worker Protection (Amendment of Equality Act 2010) Act 2023 say?

Anyone who sexually harasses someone at work is responsible for their own actions but now employers have a new duty to prevent sexual harassment in the workplace, as set out in the Worker Protection (Amendment of Equality Act 2010) Act 2023

The preventative duty is designed to improve workplace cultures by requiring employers to anticipate how sexual harassment might happen in their workplace and take proactive reasonable steps to prevent it happening.

The key word is “prevent”.

How much an employer should do depends on the resources available, size of the organisation, identified risks and what sector the organisation works in. However every organisation should be reviewing what it has in place and actively doing something to prevent sexual harassment

The Act still covers

Employees and workers
Contractors and self-employed people hired to personally do the work
Job applicants

BUT there is a big difference as now employers have to protect staff etc against third party harassment. Clients, customers, contractors, members etc.

Your first steps towards an action plan

Your duty as an employer is to take steps to prevent sexual harassment. To do this, you should:

Remove or reduce risks of sexual harassment to make sure your workplace is safe
Offer support to anyone involved in a sexual harassment complaint
Make it clear to everyone who works for you, or uses your services, that you will not tolerate sexual harassment
Train everyone who works for you on recognising sexual harassment and encourage them to report it
Implement a policy on sexual harassment

A risk assessment: Involve employees especially those working with clients, members, contactors etc. The employees will have the best experience to guide you, perhaps you could conduct a staff survey.

Create the right culture: Look at or develop a code of conduct or set of values to make it absolutely clear what behaviours are acceptable in your work place.

Support and supervision: This is the opportunity to keep policies and procedures real and alive. Discuss any issues staff are facing and remind them of the behaviours the organisation expects

Review policies

Do you need a specific policy on preventing sexual harassment?

Do the appropriate policies include prevention of sexual harassment?

Are there some training needs to ensure whoever works for you can recognise and understand sexual harassment – ideally within their first month?

Disciplinary and grievances

What process should you have for reporting sexual harassment?

Is the grievance procedure equipped to deal with complaints re sexual harassment? Consider making sexual harassment a serious disciplinary incident the same as fighting, fraud and theft and therefore potentially a sackable offence.

Complaints procedure

Does your complaints policy cover the steps and resources necessary to cover sexual harassment?

Confidentiality, whistle blowing, an employee assistance programme, support and sensitivity to the person accused and someone trained to deal with any complaints of this nature?

Do you need specialist help available?

The penalties

Employers can face stiff fines but individual staff members can face substantial fines too e.g. in one case a member of staff went to court. The employer was fined £45,000 but the person who sexually harassed the women was made to pay the victim £51,022 compensation personally.