What is Sexual Harassment?
Under Section 26(2) of the Equality Act 2010, sexual harassment is defined as unwanted conduct of a sexual nature that either violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment.
It also includes cases where individuals are treated less favourably for submitting to or rejecting such conduct.
Previously – before this amendment came into force – employers were responsible for ensuring workplace policies and procedures clearly defined acceptable behaviour.
Employers could defend claims of bullying or harassment by demonstrating they had taken proactive steps to address such issues.
New Employer Obligations Under the Worker Protection Act
The Worker Protection Act strengthens employers’ responsibilities.
Employers must now take “reasonable steps” to prevent sexual harassment by both employees and third parties.
While employers won’t be directly liable for third-party harassment, they must act to minimise its likelihood.
The Equality and Human Rights Commission (EHRC) will oversee compliance, providing updated technical guidance to assist employers.
What Are “Reasonable Steps”?
To comply with the Worker Protection Act, employers should:
- Review current Equality, Inclusion and Diversity policies to ensure that the new requirements of taking “reasonable steps” to prevent sexual harassment in the workplace are included and how employees can report any misconduct of this nature.
- Ask all employees, workers, agency staff and contractors to read the policy and note down who has read it and when.
- Notices and reminders should be placed in visible areas around the premises to ensure that the message of zero-tolerance for harassment remains at the forefront.
- Designate at least one senior member of the workforce as a safeguarding officer to coordinate training and any grievances and misconduct raised. This person should be an employee and oversee the harassment policy. Ensure they are trained to deal with grievances and communicate sensitive matters. It is possible to have more than one Safeguarding Officer.
- Provide company-wide training for the workforce to ensure they know how to identify all forms of sexual harassment in the workplace and document the training. This need not be a grand training course, but time should be taken to ensure all managers and employees know when to report inappropriate behaviour and to whom. This should be carried out at least twice annually.
- Directors and business owners must regularly review the workforce’s behaviour against the policy by monitoring complaints or grievances aired by workers and employees to ensure the culture remains positive.
- Regularly review the policy and training requirements in line with point 6.
- Support for employees who experience sexual harassment misconduct in the workplace needs to be in place and robust.
Breach of Policy
Under the Worker Protection Act, an employee can report if they suffer Sexual Harassment in the workplace through the EHRC.
An employee can also do this without a formal complaint to the employer.
For this reason, employers should act now to avoid any potential claims arising.
The EHRC will consider the following actions of any claim:
- choose to investigate the employer;
- issue an unlawful act notice if the employer does not have an action plan prepared setting out how it will remedy a claim and prevent future breaches;
- enter into a formal, legally binding agreement with an employer to prevent future unlawful acts; and
- ask a court for an injunction to restrain an employer from committing unlawful acts.
Employees may have any claims increased by up to 25% if the employer is found to have breached its Preventative Duty on Sexual Harassment.
It remains to be seen how future case law will be impacted and evolves around this area.
Future Changes To The Equality Act
The Labour Government has already stated its intention to make the workplace a fairer place for all.
They could well decide to bring in the duty for employers to be liable for third-party breaches.
They may also consider if the employer’s duty to take “reasonable steps” should be changed to “all reasonable steps”.
It would make the onus on the employer even greater if they implemented these changes.
For now, though, the Worker Protection Act is law.
Employers must act promptly to update policies, train staff, and ensure compliance.
Should you need help or advice in this matter, please email jon@hrsmartuk.com or call 01903 754107.
