Under new sexual harassment legislation that came into force in October 2024, employers are now under a statutory duty to take proactive steps to prevent sexual harassment from occurring. Failing to comply with your responsibilities under this new sexual harassment legislation can lead to an increased damages award if an employee makes a successful sexual harassment claim against you, as well as causing the Equality and Human Rights Commission to take enforcement action.
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What Is The New Sexual Harassment Legislation?
Sexual harassment in the workplace has been unlawful for a long time. Many employers had already taken voluntary measures to prevent it from occurring and often avoided liability by highlighting those measures when faced with a tribunal claim.
However, under the new sexual harassment legislation, employers are under a mandatory legal obligation to take reasonable steps to prevent sexual harassment. The change was brought about by the Worker Protection (Amendment of Equality Act 2010) Act 2023.
What Are Your Duties Under The New Sexual Harassment Legislation?
The new sexual harassment legislation does not expect employers to be able to prevent sexual harassment entirely. The duty it imposes on employers is to take reasonable steps to prevent it.
The key question for employers, therefore, is what will be deemed ‘reasonable’? Given that each organisation is unique, the new sexual harassment legislation does not provide a definitive list of the steps every employer should take to prevent sexual harassment. Instead, each employer must undertake a risk assessment and consider what steps they might reasonably take to mitigate those risks in the context of their business, the sector they operate in, and the nature of the work their employees undertake.
For example, if you operate in the hospitality sector, your employees might be more likely to work in an environment in which excessive alcohol is consumed, and you should implement reasonable measures to address that risk. If there are significant power imbalances in your business, you should consider what reasonable steps you can take to mitigate the risk of sexual harassment in such circumstances.
What Types Of Harassment Does The New Sexual Harassment Legislation Apply To?
The new sexual harassment legislation applies only to sexual harassment. It does not apply to other types of harassment, such as those based on age or race.
The Equality Act 2010 sets out what constitutes sexual harassment in a legal sense. Essentially, sexual harassment is unwanted behaviour of a sexual nature. The behaviour must either:
- Violate a person’s dignity, or
- Create an environment that is hostile, intimidating, degrading, or offensive.
The behaviour can constitute sexual harassment if it has one of the effects listed above, even if that was not intended. Furthermore, it can be sexual harassment if it was intended to have one of these effects but did not.
Does Your Duty Under The New Sexual Harassment Legislation Apply Only To Behaviour In The Workplace?
The new sexual harassment legislation covers conduct that takes place in the course of employment. Clearly, this includes behaviour within the workplace, but it also includes behaviour at work-based events, such as conferences and parties.
Accordingly, employers must pre-empt the risks inherent in these types of events and take reasonable steps to prevent them. Again, what is reasonable will depend on the circumstances. Examples of the kinds of measures you might consider implementing include the following:
- Ensuring your workers understand the standards of behaviour expected of them at social events.
- Discouraging excessive alcohol consumption at social events.
- Nominating a senior member of staff to oversee proceedings at social events.
- Avoiding sending junior or young members of staff to conferences or networking events alone.
What Happens If You Do Not Comply With The New Sexual Harassment Legislation?
An employee cannot make a standalone legal claim against you for failing to take reasonable steps to prevent sexual harassment in your workplace. However, if they are subjected to sexual harassment and make a successful claim, the tribunal may increase their compensation by up to 25%. Since the compensation that can be awarded for sexual harassment is uncapped, the consequences of this uplift can be severe.
Furthermore, the Equality and Human Rights Commission (EHRC) can take enforcement action against an employer who has failed to take reasonable steps to prevent sexual harassment in the workplace. The EHRC’s enforcement powers include investigating the business and issuing unlawful act notices requiring it to prepare an action plan detailing how it intends to remedy its breaches and prevent further breaches.
At GAP HR, we specialise in helping small businesses comply with their legal obligations and avoid tribunal proceedings. We offer cost-efficient, commercially focused advice tailored to your business and have vast experience in all aspects of employment law and HR practice.
Call us now on 01491 598 600 or Click Here to Make An Enquiry and we will be delighted to help you.
