EXCLUSIVE: With one month until the Worker Protection Act 2023 comes into force, Joanne Cash, commissioner at the Equality and Human Rights Commission, explains the proactive steps employers should take to conform with the new law.
A recent survey of 2,000 employees by Personio found that one in ten employees have witnessed or experienced sexual harassment at work but only half of them report it. Late in 2023 most women appearing before the Treasury Committee’s Sexism in the City inquiry gave evidence that it remains commonplace, and just last year the TUC found two in five women experienced at least three incidents of sexual harassment during their working lives.
Consistent reports demonstrate that sexual harassment remains widespread in many industries, but often goes unreported. The role and obligations of employers have sometimes been too difficult to define. That is about to change.
Greater protection for workers
On 26 October 2024, a change to the law in the Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force.
This new legislation introduces greater protection to workers from sexual harassment and marks an important shift in how sexual harassment at work should be addressed.
Sexual harassment
Until now, the onus was on individual workers to make a complaint if they experienced sexual harassment. For the first time, employers will have a proactive legal duty to take reasonable steps to prevent sexual harassment of their workers.
Crucially the new legal duty will also require employers to protect their workers from harassment by a third party, such as a customer, client, patient, or member of the public. This concern was highlighted in the TUC poll, which found 52% of women aged 18 to 34 said they had experienced harassment from a third party while at work.
Updated guidance from the EHRC
The new legal duty has implications for employers and HR professionals, who need to familiarise themselves with their increased responsibilities and make the necessary changes to their organisations’ policies and procedures.
At the Equality and Human Rights Commission (EHRC), we aim to support employers in doing this and today (26 September) we have published updated guidance.
Our guidance clearly sets out employers’ legal obligations under the new duty along with examples to illustrate the types of steps employers can take to prevent sexual harassment in their workplace.
We are grateful to readers of Personnel Today who engaged with our recent consultation on this updated guidance. We asked to hear from those on the ground about how we could ensure our guidance is both practical and user-friendly. Your responses enabled us to optimise how effective a tool our guidance will be to tackle workplace sexual harassment.
What steps should employers take?
The sexual harassment preventative duty is a positive and proactive duty that requires employers to take reasonable steps to prevent sexual harassment of their workers. That means employers cannot just wait until an incident of sexual harassment takes place before they act.
Employers need to be on the front foot and anticipate scenarios in which workers may be at risk of sexual harassment and take action to prevent it from taking place. If sexual harassment has taken place, the preventative duty means an employer must take action to stop it repeating.
This is an ongoing process, and businesses will need to regularly reassess risk and review if any further reasonable steps can be taken to prevent sexual harassment.
What is “reasonable” will be different from one employer to another. It will depend on their resource, size and the particular risk factors present in their working environment. No employer is exempt, and everyone must take steps appropriate for an organisation of its size, resources and nature.
With this in mind, we are encouraging employers to take a risk-based approach. Organisations need to assess what controls, policies or procedures they can introduce to minimise risks that may lead to sexual harassment. These might relate to power imbalances, job insecurity, lone/night working or the presence of alcohol for example.
Risk assessment
Our guidance illustrates what employers should consider when assessing risk and identifying what action they can take to prevent sexual harassment. When these steps are taken, it is key that any new policies or procedures are effectively communicated to staff.
It is key that employers engage with workers to ensure that they are aware of how they can report sexual harassment, what their sexual harassment policy says and the consequences of breaching it.
We recommend that employers provide regular training to all their staff so that they understand what sexual harassment looks like, their role in preventing it, and how they will be supported should an incident occur. Employers should also ensure they take steps to deal with third-party harassment such as putting reporting mechanisms in place or assessing high-risk workplaces where staff might be left alone with customers.
Everyone should be able to work without the fear of being sexually harassed. Taking the required steps is bound to reduce the number of such incidents with the added benefit of improving workplace culture and helping employees to flourish and fulfil their potential for everyone’s benefit.
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