Are you prepared for the new duty to prevent sexual harassment in the workplace?

What does the new guidance say?

The new guidance focuses on several key areas:

• There is an emphasis on the fact that the new duty is ‘anticipatory’ in nature.  In other words, it requires employers to anticipate situations where sexual harassment may occur and take steps to prevent them.  It also requires employers to appropriately deal with sexual harassment when it does take place.
• It sets out the possible consequences of failure to comply with the duty including an uplift in compensation of up to 25% (where an individual succeeds in a sexual harassment claim and the tribunal considers that the preventative duty has been breached) and EHRC enforcement action.  Such enforcement action can include investigating the employer, issuing an unlawful act notice, entering into a legally binding agreement to prevent future harassment and even injunctive relief. Workers can report a concern that the preventative duty has been breached directly to the EHRC, so we may see more employers being contacted directly by the EHRC and being asked to explain what compliance steps they have taken.
• In terms of limitations on the new duty, it confirms that it will only apply to sexual harassment and that an individual will not be able to bring a stand-alone claim based on the failure to comply with the duty.  In other words, it must be linked to an existing sexual harassment claim.
• Whilst employers are not legally liable for the harassment of staff by third parties under the Equality Act 2010, the guidance confirms that the preventative duty (and the consequential compensatory uplift of up to 25%) extends to the prevention of sexual harassment by third parties. Education institutions will need to consider what risks are posed to staff from parents, students and other end-users and what steps it may need to put in place to combat those risks.
• There is a strong emphasis on conducting sexual harassment risk assessments, with the guidance indicating that failure to conduct a sexual harassment risk assessment will result in an employer most likely being in breach of the preventative duty.

What are considered reasonable steps?

The EHRC makes it clear that one size will not fit all and what is reasonable may depend on factors such as your organisation’s size, resources, particular working environment and the sector you operate in. The EHRC guidance suggests that you will need to take an education sector specific approach in putting in place preventative measures.

What is clear is that all employers are expected to take some action to comply with the preventative duty.

You will be required to:

• consider the risks of sexual harassment occurring in the course of employment via a risk assessment;
• consider what steps you could take to reduce those risks and prevent sexual harassment of your workers;
• consider which of those steps it would be reasonable for you to take; and
• implement those reasonable steps.

The new guidance includes examples of what steps different organisations may have to put in place to comply with the preventative duty. What is clear from these examples is that the EHRC’s view on what are considered reasonable steps is a high standard and more closely aligned with an “all reasonable steps” duty. A light-touch approach will not be sufficient.

The new section of the guidance refers to the following examples of the steps it envisages might be taken:

• having in place effective policies and procedures dealing with harassment as a whole, but which differentiate between different kinds of harassment, including harassment by third parties.  These should be developed in collaboration with trade unions or workplace representatives and interact appropriately with other workplace policies such as disciplinary, IT and computer use and dress code;
• appointing ‘harassment champions’ who are specifically trained in providing support to individuals who have experienced harassment through the process of making a complaint;
• developing a thorough campaign to ensure awareness of the policies and evaluation of their effectiveness (through, for example, analysis of claims and trends, staff surveys and lessons learned sessions);
• maximising the opportunities for issues regarding harassment to be raised and ensuring that proper training is provided to all employees regarding types of harassment, identifying what is and is not acceptable behaviour and how to identify and deal with harassment when it occurs;
• adopting a risk assessment approach.  Suggested risk factors include:
  • power imbalances
  • job insecurity
  • lone working
  • the presence of alcohol
  • particular events that raise tensions locally or nationally
  • lack of diversity in the workforce, and
  • workers being placed on secondment
• having in place both informal and formal processes to deal with harassment, including how to approach workers who raise an issue but ask for it not to be taken further, how to deal with confidentiality during an investigation, reporting on outcomes and data privacy issues.

In deciding whether a particular step is or isn’t reasonable, you can consider the effectiveness of that step against such factors as the time, cost and potential disruption which may be caused by taking that step.  However, the suggestion is that the more effective the step would be, the more likely it is to outweigh other factors.

What should you do next?

Education institutions should:

• carefully review the EHRC’s recently released ‘Employer 8-step guide: Preventing sexual harassment at work’ to ascertain what key steps they should be taking now;
• conduct a sexual harassment risk assessment based on the risk factors specific to them, identify any risks and take steps to mitigate those risks;
• review and update their policies, procedures and training on sexual harassment, and workforce awareness of these; and
• put in place effective mechanisms to regularly review compliance with the preventative duty, such as staff surveys, complaints monitoring and anonymous reporting channels.