Are you prepared for the new duty to prevent sexual harassment?

The new duty is to take reasonable steps to prevent sexual harassment in the workplace. However a higher bar will be introduced by the Employment Rights Bill, namely that ‘all’ reasonable steps be taken. This would align with the CQC’s requirements to take all reasonable steps to prevent harassment of service users.

The duty also applies in respect of third parties, such as clients, visitors and contractors, which means that you need to take preventative steps to avoid sexual harassment of your workers by these third parties.

Sexual harassment occurs when someone engages in unwanted conduct of a sexual nature, which has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment. This can include verbal, non-verbal, or physical conduct, with a single incident being sufficient to constitute harassment. Importantly, there is no need for the victim to explicitly state the conduct is unwanted.

The Equality and Human Rights Commission (EHRC) lists several examples of conduct that could amount to sexual harassment, such as sexual jokes, graphic pictures, suggestive looks, sexual advances, intrusive questions, sexual posts on social media, spreading rumours, sending explicit messages, as well as unwelcome touching, hugging, or kissing.

Failure to comply with the new duty could result in the EHRC conducting workplace investigations, issuing Unlawful Act Notices, and imposing unlimited fines. This could also trigger a CQC inspection.

Tribunals can also uplift compensation by up to 25% if an employer fails to take reasonable steps to prevent sexual harassment. The latest tribunal figures for 2022/2023 show an average award of £37,607 for sex discrimination, so an additional 25% would be even more costly.

Compliance with the duty requires much more than a simple tick-box exercise; a detailed risk assessment, action plans to mitigate risk, staff surveys, training for employees and managers and policies and procedures on reporting and compliance are some of the steps required.

We can help you comply with the new duty in the following ways:

• Carrying out risk assessments
• Drafting reports and action plans
• Facilitating anonymous staff surveys
• Training from our specialist discrimination lawyers on preventing sexual harassment
• Implementing effective reporting processes
• Policies and procedures

Please do get in touch if you would like to discuss further.