Changes to the law on Sexual Harassment

The Worker Protection Act (Amendment of Equality Act 2010) Act 2023 comes into effect on 26^th October 2024. This new legislation will introduce a new duty for employers to protect their workers from sexual harassment, specifically placing more onus on employers to ensure that there are adequate protections in place to prevent sexual harassment. The change is intended to make employers becoming more proactive in preventing harassment in the course of employment.

Context

Sexual harassment has dominated the headlines since the #MeToo movement encouraged those who had experienced sexual harassment to come forward and speak about their experiences. This helped remove some of the stigma that victims of sexual harassment previously felt. In 2018 the Government announced its plan to take steps to tackle sexual harassment in the workplace by introducing a new Code of Practice to help employers better understand their legal responsibilities to protect their staff as part of its commitments to tackle the issue. This was prompted by the Women and Equalities Select Committee report 2017 – 2019 which at that time set out recommendations including: introducing a new duty on employers to prevent harassment.

In 2020, the Government Equalities Office conducted a survey[i] to determine the extent of the problem of workplace sexual harassment. Of the 12,131 people who responded, 29% of those in employment reported experiencing some form of sexual harassment in their workplace. The most prevalent forms of sexual harassment reported were unwelcome sexual jokes and unwelcome staring.

Most reported experiencing sexual harassment physically in the workplace setting although reports of sexual harassment are often common when socialising with colleagues outside work or on client/customer or site visits.

The survey also found that men were just as likely as women to experience sexual harassment in the workplace, although there was a difference in the type of harassment experienced by men and women. Women, younger persons (aged 15-24 and 25-34), ethnic minorities, LBG individuals and those with disabilities were found to be more likely to have experienced sexual harassment in the workplace.

Clearly sexual harassment remains an issue which needs to be addressed and therefore this new duty has been introduced as a way to tackle the issue and provide greater protection to workers.

What is Sexual Harassment

Sexual harassment occurs when a worker is subject to unwanted conducted of a sexual nature. The conduct does not need to be sexually motivated, but sexual in nature. Unwanted conduct of a sexual nature could be any of the following:

• Sexual comments or jokes
• The display of sexually graphic pictures
• Unwanted staring or suggestive looks or leering
• Propositions and sexual advances
• Making promises in return for sexual favours (e.g. if the promise is made by someone in a position of authority, they might promise a promotion or pay rise)
• Sexual gestures
• Questions about someone’s private or sex life. Discussing one’s own sex life may also amount to sexual harassment
• Unwanted contact on social media (including sexual posts). Or via text or email. This can include sending sexually explicit or suggestive messages
• Unwanted touching, hugging, massaging or kissing
• Spreading sexual rumours about a person.

For sexual harassment to have taken place, the worker must have been subjected to unwanted conduct of a sexual nature (or related to sex) and that unwanted conduct has the purpose or effect of violating that worker’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the worker.

It is important to note that even if there had been past sexual interaction, this may become unwanted and therefore subsequently amount to sexual harassment.

Sexual harassment may also occur where a worker is treated less favourably because they submitted to or rejected the unwanted conduct.

The new duty

This new duty is a preventative one and therefore is an important change. The Worker Protection Act 2024 states that an employer:

“… must take reasonable steps to prevent sexual harassment of employees [of A] in the course of their employment”.

The new duty is intended to provide protections to employees and shifts the focus from remedy i.e. action taken AFTER sexual harassment has occurred to preventing sexual harassment in the first place. If an employer fails to take reasonable steps to prevent harassment, there will be liable to financial consequences for that failure as now the tribunal may award a compensation uplift of up to 25%.

The EHRC (the Equality & Human Rights Commission) have introduced some helpful new guidance on employer’s legal obligations to take reasonable steps to prevent the sexual harassment of their workers[ii].

What actions should you now take as an employer?

There are a number of proactive steps that you can take now to ensure that you comply with the new duty to take reasonable steps to prevent sexual harassment in your workplace including:

• Carrying out a risk assessment to limit the risk of harassment in various parts of your business and considering what specific measures could be put in place to protect employees.
• Reviewing existing policies and ensuring that they are up to date. It is important that your employees are aware of these policies and know where to find them.
• Training: all employees at all levels should be required to undertake regular training on what sexual harassment is and how they can prevent this. It is often not enough just to require employees to undertake this training only once at the start of their employment and instead annual refresher training should be considered. Training should also focus on encouraging positive behaviours.
• Try to cultivate a positive workplace environment which makes it clear that workplace harassment (particularly sexual harassment) will not be tolerated, and that any offenders will be subject to disciplinary action. Employees should feel confident that any concerns or complaints that they raise will be dealt with sensitively, confidentially and fairly.
• Further to (c) and depending on the size of your workforce and resources, you may wish to consider nominating specific people (in HR and/or management) to be “Sexual Harassment Champions” who deal with and handle any reports first in order to increase visibility for employees.
• Ensure that there is a confidential reporting system in place. Ideally this would be online and would allow employees to report in their name (or anonymously).

This can be a tricky area to navigate. If you would like further advice in relation to this or think you or your team may benefit from some training, please do not hesitate to contact a member of our Employment team.

[i]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1002873/2021-07-12_Sexual_Harassment_Report_FINAL.pdf

[ii] Sexual harassment and harassment at work: technical guidance | EHRC (equalityhumanrights.com)