The Equality and Human Rights Commission (EHRC) has confirmed that it will be updating its existing Code of Practice and technical guidance on ‘Sexual harassment and harassment at work’ to address the new mandatory duty that will apply to employers from October 2024, to take reasonable steps to prevent sexual harassment in the workplace.  

In July 2021, the Government published its response to a consultation on sexual harassment in the workplace and pledged to introduce measures aimed at preventing instances of such conduct. This included the introduction of a mandatory duty on employers to prevent sexual harassment in the workplace, and a defence would be available to employers who had taken “all reasonable steps” to prevent such acts taking place. Legislation was passed at the end of 2023 to introduce the changes, which will take effect in October this year. 

In addition to a positive duty on employers to take reasonable steps to prevent sexual harassment, Employment Tribunals will also be given the power to uplift compensation for sexual harassment by up to 25% if the employer is found to have failed in its duty to prevent the conduct so be warned – this could cost your business dearly! 

What steps should employers be taking now? 

With less than four months to go for this duty to apply, it would be a mistake to wait for EHRC’s guidance. Most employers already have a myriad of initiatives to reduce sexual harassment, not least to give themselves the reasonable steps to defend themselves in any sexual harassment cases a “savvy” employee may raise as they become aware of these changes. 

Any existing steps you have in place as an employer,  should be evaluated and built upon because, unlike the reasonable steps defence, this is a positive duty on employers. Every employee who may make an Employment Tribunal claim, will plead that this duty was not taken seriously, leaving the employer to defend the continuing work they are doing in this area. 

One size will not fit all employers here, and much will depend on the current culture and policies and measures you have in place. For all employers, it will require a multi-dimensional approach, and one that instils confidence that complaints of this nature will be taken seriously if reported. For example, strengthening measures could include: 

• A strong message from management about the zero-tolerance culture and the high standards of conduct expected from all employees. 
• Auditing of your existing policies and training to identify weak areas in need of improvement. 
• An annual staff survey to ascertain whether employees feel confident to report incidents, and if not why – this would allow employers to measure progress year-on-year. 
• Refreshed, mandatory training to all staff which is tailored to the different populations: senior management, line managers, HR, new joiners. Employers should keep a record of the training delivered, and those who attended. 
• Specially trained members of staff or perhaps your HR support team, who act as ambassadors for anyone who wants to chat about sexual harassment on a confidential basis. The identities of those individuals, and how they can be contacted should be widely known. 
• A review of confidentiality arrangements to protect anyone who does make a complaint. 
• Regular, ongoing evaluation of anti-harassment/dignity at work policy – employers should ask themselves if the policy is effective, robust and accessible. 
• Hopefully you wont need to defend yourself against a sexual harassment claim, however it would be prudent to have a plan available which demonstrates to a tribunal everything that has been done to eliminate sexual harassment.  

If any of the questions raised by our clients this month sound a bit daunting, or you are worried about any other employee matters, don’t worry; help is at hand!  Get in touch today for an informal chat and we will come up with a plan together to help you resolve whatever your problem is – then you can get on with running your business!  Book a call HERE.