Positive duty to take reasonable steps to prevent sexual harassment of employees: what you need to know

The Worker Protection (Amendment of Equality Act 2010) Act 2023 is due to come into effect on 26^th October of this year which:

1. Introduces a positive duty on employers to take reasonable steps to prevent sexual harassment of their employees; and
2. Gives Tribunals the power to uplift sexual harassment compensation by up to 25% where employers are found to have breached this duty.

What EmPLOYERS need to know

It is important to remember that compensation for discrimination, including harassment, includes an element of injury to feelings, and has no compensation cap, so a 25% uplift on an already hefty award could be a serious penalty to face.

The changes will mean that employers must take “reasonable steps” to prevent sexual harassment of employees in the course of their employment, with the subsequent potential increase in compensation to bolster the new rights.

Although October is some time away, it is just before the next Christmas party season begins, so now is the ideal time to learn lessons from this year or see where you did things right and repeat them.

5 practical steps to take now

1. Audit your work social events – were there any issues, and could those have been prevented?       Consider – how much alcohol was provided; how much alcohol was available; what supervision took place; were vulnerable employees kept safe; did people understand how they should behave?
   
   
2. Look at your equality training and awareness – is there a zero-tolerance culture within your workplace? If not, can you take steps to introduce one?       Do people understand that words are just as important as actions?
   
   
3. Are your managers fully trained and able to provide you, as an employer, with a defence, should there be a “rogue” employee engaging in unwanted behaviour outside your expectations?
   
   
4. Is there someone who is available to staff with concerns outside the normal management structure? It’s an area that many people feel awkward raising, but early notification can avoid much more significant later problems, so consider having someone available as a point of contact and ensure that person is fully trained.
   
   
5. Do staff know that they will be taken seriously if they have concerns? Do your actions as an employer match your words? It’s important to show that your training comes with consequences if you are to succeed in your defence.

Treating sexual harassment in a similar way to health and safety is a sensible way to deal with this positive duty.

Risk assessments, including whether there is a risk of harassment and how that has been minimised, will go a long way to showing “reasonable” steps.

Combine that with up-to-date training, a culture that doesn’t tolerate sexual “banter”, and evidence of disciplinary action being taken at all levels to back this up should put you as a business in a strong position to defend any such claims.

Here at Bridge, we can help you get ready for this Act, help you audit your business and put in place anything that would help you be ready to defend this, and indeed any other discrimination claims that you may face.

We offer bespoke training, as well as general training sessions, depending on your needs. We can audit your documents and provide advice on where they can work harder for you.