ARTICLE UPDATED 28 OCTOBER 2024
On 26 October 2024, the Worker Protection (Amendment of Equality Act) Act 2023 came into force. This places a “positive duty” on employers to take “reasonable steps” to prevent sexual harassment of their employees.
Currently, employers are expected to take reasonable measures to prevent sexual harassment complaints from employees. The introduction of a new affirmative obligation expands on this by urging employers to proactively address potential risks of sexual harassment and implement appropriate preventive measures. Additionally, employers must intervene in cases of sexual harassment to prevent recurrence. The new legislation is broad enough to encompass harassment from any individual, such as clients and other business associates, not limited to fellow employees.
Employers face the risk of financial and reputational harm if they do not adhere to this new law.
Financial – In cases where an employer does not fulfill their obligation to take "reasonable steps" to prevent sexual harassment, and a claim is successful in the employment tribunal, a 25% increase may be added to an unlimited compensation payout, leading to potential high costs.
Reputational – The Equality and Human Rights Commission (EHRC) is empowered to enforce actions and carry out independent investigations within the organisation.
Employers must ensure that they have an updated policy/procedure in place to prevent sexual harassment and that it is followed.
What constitutes a reasonable step may differ among employers based on factors such as their size, available resources, the organization's nature, and any risk factors. Employers have understood the importance of having policies, procedures, and training to ensure that all employees are informed. The new responsibilities extend beyond mere checkbox compliance.
Depending on the nature of the business, risk factors for sexual harassment may vary between workplaces. Employers need to understand that the following factors could elevate the likelihood of sexual harassment taking place within their organisation:
Employers in customer-facing environments such as retail and hospitality sectors may have limited to no authority over the behaviour of external parties like customers;
Work social events – particularly those involving the presence of alcohol;
Lone working – for example, in a petrol station kiosk;
Attending meetings off-site – employers will have no control over the off-site environment; and
Work travel – employers will have no control over the environment whilst staff travel for work.
If any of the above factors are present in an organisation, employers must carry out a more thorough risk assessment to adhere to the new obligation to prevent sexual harassment.
Employers should demonstrate inclusive practices by clearly showing their zero-tolerance approach to harassment to their staff.
It is important to have an effective complaints handling process in place to ensure that staff feel heard and supported when they come forward with complaints.
Regularly monitoring and reviewing all reasonable steps taken is essential, as employers have an ongoing duty to demonstrate compliance with the new positive duty.
This assessment should include, as an example:
Risks
Risks identified of worker to worker sexual harassment
• Risk that workers could be sexually harassed by colleagues
Risks identified of third party sexual harassment
• Freelancers (self-employed workers) sometimes work with staff
• Audience attending productions
• Third parties attending opening night parties and awards events
Control measures
Reasonable steps to be taken to reduce risk
• Communication to staff of zero tolerance approach which means recognising that no worker should have to experience sexual harassment at work
• Taking all concerns raised about sexual harassment seriously
• Acting to promptly take appropriate action when concerns are raised
• Encouraging staff to report any instances of sexual harassment, including third party sexual harassment, that occur
• Developing a protocol for how any reports of sexual harassment, including third-party harassment, will be dealt with
• Self-employed freelancers to be informed of the zero-tolerance policy by email when they contract to work
• Audiences are advised of the zero-tolerance policy when they book their tickets
• Notices are displayed in both the public and private areas of the theatre where productions take place
Remember that KSH Safety Services has an online course called Sexual Harassment in the Workplace. This course has been updated with the law changes, and is ideal for any business as all businesses have to train their employees on the subject. The course can be found HERE
