New duty on employers to prevent sexual harassment

Sexual harassment in the workplace is already unlawful and nothing in the new laws will change this, nor will they change the definition or scope of what will amount to sexual harassment. The new legal duty places a positive obligation on employers to take reasonable and proactive steps to prevent sexual harassment from taking place. The consequences or those who do not comply with this duty are that, in the event of a successful claim for sexual harassment, compensation can be increased by  up to 25%. The Equality and Human Rights Commission can also investigate and take its own enforcement action against employers suspected of non-compliance.

What reasonable steps can businesses take to prevent sexual harassment in the workplace?

“Reasonable steps” for each employer will depend on their size and resources and the nature of their business. However, as a minimum, all employers should consider the following:

• Conduct a risk assessment to identify where problems could arise and how those issues can be addressed
• Have clear, effective and up to date policies in place
• Train all staff on acceptable behaviour and on how to report matters of concern
• Put effective practices in place to ensure that employees who report concerns receive appropriate support
• Provide additional training to managers on how to handle complaints and deal with any issues effectively
• Develop a zero tolerance workplace culture in relation to sexual harassment
• Consider and address the risk of harassment by third parties

For all employers, the initial risk assessment will be the essential starting point. Steps rolled out as a “tick box” exercise will not comply with the new legal duty. Employers will only have a clear idea of what gaps there might be and how those might be filled once they have assessed their own specific areas of risk. Some employers will already have robust processes and training programmes in place as part of a zero tolerance approach and for those it may be the case that, following proper assessment, current practices are already sufficient to address the risks.

Are employers liable for sexual harassment by third parties?

One area that may be a change for many will be addressing the risk of harassment by third parties. Under current harassment laws, employers are not liable for harassment by third parties. However complaints might still be brought indirectly and the new duty to protect employees from harassment does extend to all forms of harassment, including from third parties. The new Labour Government has also announced that liability for harassment of third parties will become law in the future. Therefore all employers should take this seriously and should include it as part of their overall risk assessment.

If you need further information on the legal duty to prevent sexual harassment in the workplace, or need assistance with putting together your risk assessment and subsequent steps, please get in touch with one of our Employment solicitors.