This is aimed at reducing the occurrence of inappropriate and offensive comments from colleagues (often referred to as ‘banter’), as well as instances of physical harassment.
On 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force. All employers will be subject to a new legal duty to take “reasonable steps” to prevent sexual harassment of employees in the course of their employment. This is aimed at reducing the occurrence of inappropriate and offensive comments from colleagues (often referred to as ‘banter’), as well as instances of physical harassment.
If an employee succeeds with a workplace sexual harassment claim, the Employment Tribunal will then have to consider whether the employer breached this new duty to take “reasonable steps”. If the Tribunal concludes that “reasonable steps” were not taken, the employer may need to pay a 25% uplift in any compensation awarded to the employee.
Sexual harassment re-cap
Sexual harassment occurs when someone engages in unwanted conduct of a sexual nature that has the purpose or effect of violating the other person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that other person. It can occur if the perpetrator intended it to have that effect, even if it does not actually have that effect on the other person.
Similarly, it can occur if it has that effect on the other person, even though the perpetrator did not mean for it to have that effect. It can also occur where the conduct has that purpose or effect, the other person rejects or submits to the conduct and the perpetrator treats them less favourably as a result.
Examples of sexual harassment include inappropriate physical contact and sexually indecent acts, but also sexually suggestive remarks or sexually offensive jokes (including about someone's sexual orientation or gender reassignment). Behaviours such as displaying or sharing sexual images, flirting, making sexual remarks about someone’s body or clothing, or asking or commenting about someone’s sex life may also constitute sexual harassment. Whilst some of these may be classed as harmless ‘banter’ by some employees, claims of sexual harassment may still arise from them, even by an employee who is not the intended target or recipient.
At present, a sexual harassment claim can be brought against the relevant individual, and against the employer on the grounds that it occurred “in the course of employment” and the employer was vicariously liable. Note that this can still apply if the harassment occurs at a work social event or through social media that is linked to work.
What can you do?
As the new duty is only a few weeks away, now is the perfect time to prepare for it. Here are 10 steps businesses can take now:
1. If you don’t have a harassment prevention policy in place, you should get one. This is likely to be the first document an Employment Tribunal asks to see if a harassment claim (of any type) is raised. The absence of a policy will inevitably also make it much harder to establish that “reasonable steps” were taken to prevent sexual harassment from occurring.
2. If you have a harassment prevention policy in place, check whether it needs any update and use this time to remind employees of the policy. Let them know where it can be accessed and the procedure for raising any concerns or complaints regarding sexual harassment. A policy will do little to show “reasonable steps” if employees are not made aware of it or have no idea where it can be found.
3. Consider using an anonymous staff questionnaire to ascertain whether employees have concerns about sexual harassment. Ask if they have ever experienced it and whether they know the procedure to follow should they experience or witness such unwanted behaviour. Use this to evaluate the scope of the risk within your business and how well your procedures are working. Do changes need to be made?
4. Make the company’s stance on sexual harassment clear and visible to employees by issuing an email reminder, an update or blog on the intranet. If your workplace is one in which sexual ‘banter’ is at risk of being commonplace as part of the workplace culture, use signage to clearly state that it will not be tolerated and that any concern or complaint should be immediately reported.
5. Consider whether the risk of sexual harassment in your particular workplace is higher than some, owing to the type of work carried out or other factors. If so, can any steps be taken to address these factors and reduce the risk?
6. Check your Disciplinary Rules. Do they clearly state that sexual harassment will not be tolerated and will result in disciplinary proceedings? Would the Rules benefit from listing some examples of sexual harassment, so there can be no argument that an employee considered ‘banter’ to be fine, for example? Remind all employees where sexual harassment sits within the Disciplinary Rules and the potential sanctions that may result, including dismissal.
7. Consider what training you provide on sexual harassment. Training employees can bring a policy to life and provide an opportunity for you to reassure them that complaints (whether formal or informal) will be listened to and dealt with appropriately. Similarly, training managers should ensure that they respond correctly to any complaints, know how to support staff and know what to listen out for generally - for example during informal meetings and exit interviews. Training should be rolled out regularly to refresh knowledge on this subject and demonstrate the employer’s commitment to preventing sexual harassment.
8. Review your induction process for new staff. Consider including clear information regarding the company’s stance on sexual harassment, the importance of the policy, and the sort of behaviour (including ‘banter’) which is and is not acceptable. You should also outline the process for employees to call out any such behaviour or raise concerns should they experience sexual harassment or see it.
9. Make sure you have systems in place to monitor any complaints made (formal and informal) so that you can spot any trends or problem areas. If sexual harassment complaints are made, you will want to review whether anything else could have been done to prevent this.
10. Make sure you have systems in place to note all the efforts you are making to take “reasonable steps” to prevent sexual harassment. For example, keep a record of any meetings in preparation for October, any review of your policy, any refresher roll-out of the policy, training or other efforts. This will be an ongoing record and is something you will want to show to the Tribunal if a sexual harassment claim is raised.
As well as helping you to demonstrate that “reasonable steps” were taken, these steps will also help:
Further help
ACAS offers valuable guidance on sexual harassment, which businesses can utilise to comply with the new Workplace Protection Act 2023. At Walker Foster Solicitors, we go beyond basic advice by providing a comprehensive range of services to help employers prepare effectively. We specialise in drafting clear policies, establishing robust disciplinary procedures and guiding effective communication with employees. Our team takes the time to understand your unique circumstances, and we tailor our approach to meet your specific needs.
We also offer tailored training to help prevent incidents before they occur, keeping your workplace not only compliant but also proactive at addressing potential risks. If grievances do arise, we can guide you through the response process with sensitivity and legal precision.
With the Worker Protection Act 2023 approaching, now is the time to act. Our experienced team is dedicated to providing you with top-quality legal services, keeping you informed at every stage. We pride ourselves on clear communication, transparency, and delivering the most cost-effective service possible. By choosing Walker Foster, you are opting for a partner committed to achieving the best outcomes for your company and its employees.
Get your workplace ready for the Worker Protection Act 2023 and get in touch today.
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