It seems apt, given the recent disclosures around Mohamed Al-Fayed when he owned Harrods, that the changes around sexual harassment at work becomes law on 26 October 2024. There was lots of reporting around this the beginning of 2024 and the time has now come for employers to consider what this means for them.
We think it is fair to say that most employers do not, intentionally, set out to sexually harass its employees or condone sexual harassment at work. However, with all the recent media around this, it is clear this is happening on a regular basis, despite the fact sexual harassment in the workplace is already unlawful and has been for decades.
So how are things changing for employers in respect of their duties regarding the prevention of sexual harassment in the workplace as of 26 October 2024?
- Employers will be under a mandatory duty to prevent sexual harassment
- This means taking reasonable steps to prevent sexual harassment.
- Sexual harassment is unwanted conduct of a sexual nature.
- This duty extends to sexual harassment occurring in the course of employment
- This will cover in the place of work, but also all work related events
- There will be many challenges as to what in the course of employment means especially, since Covid, remote workers are now the norm and colleagues will have shared their mobile numbers with their colleagues for work purposes. How do employers “prevent” colleagues messaging each other outside of work for example?
- This is going to require employers to anticipate the situations where employees maybe exposed to sexual harassment and then take action, in advance, to put preventative measures in place.
What happens if sexual harassment has occurred in the course of employment? It will be for employers to show that they took reasonable steps to prevent sexual harassment occurring in the course of employment. Reviewing policies alone will not be enough, employers will need to think proactively about what steps they need to take.
Will the yearly roll out of Equality and Diversity Training and Unconscious Bias training be enough? Probably not.
However, these will be the employer’s first steps:
- Review those policies, amend where necessary;
- Look at what other proactive steps can be taken; and
- Educate, educate, educate.
What could those proactive steps be? Here are a few we have thought of:
- A sexual harassment reporting channel (a confidential reporting line like they may have for Whistleblowing) and then immediate investigation and action, not months and months of investigation, when a matter is reported. And alongside that the support for those that have reported and those involved in any investigation.
- Ensuring that people managers are equipped and have the training and confidence to challenge inappropriate behaviour in the course of employment
- Monitor and Review – this means ensuring that your workforce is protected at every level (recruitment, promotion, normal day to day work, workplace gatherings and events) using tools such as staff surveys and feedback to gather that insight.
And what if you find yourself, as an employer, on the wrong side of a claim? In addition to an award for injury to feelings (and compensation if the employee’s earnings / benefits are affected by the harassment) the employer will also face a 25% uplift of any award made. And then the negative PR, which can destroy your business, especially given this has been in the spotlight since the Me Too movement, and has only become more prevalent.
This new law will be inserted into the Equality Act 2010, as Section 40A. However, an employee cannot bring this claim against the employer, only the EHRC can do this. Notwithstanding this, an employee can still bring a claim for sexual harassment under the Equality Act 2010, and where the employee succeeds in this claim, the Tribunal will need to consider if Section 40A has been met by the employer.
If you require any assistance, you can contact our Employment Client Services team on employmentinfo@daslaw.co.uk or call on 0344 2640102.