Did you know that on 26 October 2024, new legislation came into effect in England, Scotland, and Wales, requiring employers to take reasonable steps to prevent sexual harassment in the workplace?
Under an amendment to the Equality Act, where an employee brings a successful employment tribunal claim for sexual harassment, the tribunal now has the power increase compensation by up to 25% if the employer has failed to put in place reasonable measures to prevent the sexual harassment of their employees from occurring in the workplace.
Certain sectors that tend to be male-dominated, as well as those that involve lone working for clients where employees may as a result be more isolated and lack the same support structure, report higher instances of sexual harassment; so it is important for employers in the trades sector to be aware of their new duties under this legislation.
What is the new preventative duty and how does this differ from previously?
Prior to 26 October 2024, employers in the UK may be found liable for sexual harassment carried out by employees if the employer didnāt do enough to prevent it from occurring. How the new legal duty differs is that employers must take reasonable steps under the Equality Act to prevent sexual harassment of employees in the course of their employment from occurring in the first place. This means employers should not wait for an incident to occur before taking action.
Who does this apply to?
The duty to prevent sexual harassment applies to sexual harassment between employees, between the employee and third parties they work with (including clients and contractors), or between the employer and employees. The duty to take preventative steps applies to employers only and not the self-employed.
Sexual harassment by third parties
The Equality and Human Rights Commission (EHRC) guidance to the Equality Act includes a duty for employers to take reasonable steps to prevent sexual harassment of their employees by third parties, including by clients and contractors their employees work with; however, there is no legal remedy for the employee under the Equality Act should the employer fail to do so. Under the Equality Act only the EHRC can take enforcement action against standalone breaches of the duty if an employer fails to take reasonable steps to prevent third-party sexual harassment of employees. In light of this, although not a legal requirement, when entering into business contracts for the supply of services, such as with main contractors, or other business to business contracts, employers could consider including contractual clauses regarding the requirement for the business to have their own anti-harassment policies in place and setting out unacceptable standards of behaviour.
What are employers expected to do?
Employers cannot of course entirely prevent sexual harassment from ever occurring in the workplace. Employers are expected to take appropriate measures to prevent sexual harassment as far as this is reasonable by carrying out a sexual harassment risk assessment to identify what steps to take. The required steps will always depend on each particular business and the level of risk (for example businesses whose staff have already reported sexual harassment to their employees will be expected to do more to prevent it happening again) but, based on EHRC guidance, as a minimum these will include having a clear sexual harassment policy which staff sign to say they have read and understood, providing mandatory training, encouraging the reporting of sexual harassment by staff and monitoring employee complaints to ensure any employee complaints of sexual harassment are properly investigated and resolved.
What actions can be taken against employers who donāt comply?
The Equality and Human Rights Commission (EHRC) can take enforcement action against employers who fail to comply with the preventative duty. Additionally, if an employee succeeds in a sexual harassment claim, an Employment Tribunal can increase compensation by up to 25% if the employer has failed to put in place reasonable measures in accordance with the preventative duty. However, an individual cannot bring a claim for a breach of the preventative duty alone.
PDA Member resources
PDA Associate Partner Markelās legal team have uploaded a new guidance document onĀ sexual harassmentĀ to its Business Hub, as well as a templateĀ sexual harassment policyĀ andĀ sexual harassment risk assessmentĀ that Members can use.Ā
If you have any difficulties accessing these links, please contact PDA Head Office.
- Telephone: 024 7635 3776
- Email: [email protected]