Written by Charlie Rae, partner in law firm TLT’s employment team
On 26 October 2024, a new law will come into force which places a duty on employers to take reasonable steps to prevent the sexual harassment of their workers in the course of their employment.
Sexual harassment is conduct of a sexual nature which has the purpose or effect of violating a worker’s dignity or creating for them an intimidating, hostile, degrading, humiliating or offensive environment.
The new preventative duty requires employers to take reasonable steps to prevent sexual harassment by their own workers as well as by third parties such as clients, contractors, customers, and/or members of the public.
Financial advisors who are in employment (or, indeed, are employers themselves) will find their employer must take proactive active steps to anticipate scenarios where their workers may be subject to sexual harassment in the workplace and be proactive to prevent it. Self-employed advisers may see employers they interact with highlighting their expectations of third-party standards of behaviour and may even find they are being asked to sign up to behavioural charters and such like
The duty will cover acts in the workplace but also any other place where the worker is working, for example attending a training course. It might also include other circumstances where the worker is not working but what they are doing is connected to work, such as after-work team drinks.
What is a ‘reasonable’ step is expected to vary from employer to employer. Recently published Equality & Human Rights Commission (EHRC) guidance sets out a detailed list of factors that might be relevant, such as the size and resources of the employer, or whether steps already taken have been effective or ineffective.
Some of the preparatory steps we are seeing employers take, include preparing a bespoke risk assessment, reviewing and updating existing policies and procedures, delivering training courses for staff and managers, setting up anonymous reporting channels, and making and keeping under review a record of all reported incidents of sexual harassment.
For employers who fail in the new duty, the EHRC has the power to take enforcement action against the employer, in many cases this may arise from workers who report concerns directly to the EHRC. In addition, where an employee succeeds in a Tribunal claim for sexual harassment and is awarded compensation, the Tribunal can uplift that compensation by up to 25% if it considers the employer has not complied with the duty. However, an employee will not have a standalone claim for breach of the duty by an employer.
It’s worth noting that the Labour Government is proposing to raise the bar on these new changes even higher for employers. Whilst some commentators have criticised the forthcoming changes as being too light on the enforcement options, it’s an obligation that employers will need to take seriously, not least because these duties are only likely to be strengthened in time.
