Let’s talk about it – the dialogue surrounding workplace culture is changing. Historically, sexual harassment has been a topic employers flinch away from—a taboo matter swept under the rug and ignored as much as possible. Not anymore.
The new Duty to Prevent Sexual Harassment came into effect on 26 October 2024. This is supported by updated guidance from the Equality and Human Rights Commission.
All employers, regardless of size, sector or circumstance, must now take reasonable steps to prevent sexual harassment in the workplace. It’s a change that has been overlooked by some employers, but it’s a legal duty that requires employers to take a much more hands-on approach than before and should not be ignored.
Research in the UK reveals that more than half of women have experienced harassment at work while 18% of men report facing unwanted sexual behaviour in the workplace. These issues are now being addressed more directly, a need perhaps highlighted by the number of sexual harassment tribunal cases rising by 7% in the first nine months of 2024, climbing to 125 cases compared to 117 over the same period in 2023.
What does this mean for employers?
In summary, you are now required to take active steps to foresee potential scenarios where your employees and workers may be subject to sexual harassment in the course of their employment and take pre-emptive action to prevent harassment from taking place.
What will be considered ‘reasonable’ is not defined but is likely to depend on the specific risks and factors such as the size of the employer, and the nature of the workforce. Taking into account the updated EHRC guidance and previous cases, the type of action you should consider taking includes:
Currently, the changes to the Equality Act 2010 do not specify that third-party harassment is included, but the EHRC guidance and examples provided suggest that it is. The safest approach is to presume it is covered, in any event, changes are anticipated which will confirm this (see below).
Practical Steps for Employers
Employers consider these steps as your New Year’s Resolution:
Future changes- The Employment Rights Bill 2024
Laid before Parliament on 10 October 2024, hailed as “the biggest upgrade to workers’ rights in a generation,” it is a significant piece of legislation in the UK. However, this will take time to come into effect with consultation during 2025 and implementation expected no earlier than 2026.
The bill proposes further changes that employers should be aware of to strengthen employees’ protection against workplace harassment. These include:
An Example of why Employers must act
Take the recent case of Fernanda Hermosilla, an employee of the Northern Ireland Human Rights Commission. Her harassment claim, which settled for £36,000, underscores the need for employers to foster a more protective environment for employees, ensuring reasonable steps are taken to protect employees against sexual harassment.
At a workplace Christmas party, Ms Hermosilla faced an unwanted physical advance from a colleague. This was witnessed by others. A formal complaint by a witness triggered an investigation. However, the investigation failed to adequately protect Ms Hermosilla, exposing glaring errors in the employer’s response.
During the investigation, Ms Hermosilla shared details of a previous incident involving the same colleague but had hesitated to report it earlier due to being new in her role. While the accused worked remotely during the investigation, Ms Hermosilla was still required to collaborate with him, which understandably caused her further distress.
Ms Hermosilla was led to believe the colleague would not return to the workplace, only to discover he had been reinstated without her knowledge. This, paired with allegations of inappropriate racial and political comments by the same individual, revealed systemic failures in handling harassment complaints, leaving her feeling unsupported and unsafe.
Conclusion
The New Duty to Prevent Sexual Harassment and the proposals within the Employment Bill 2024 strengthen the need for employers to implement robust policies and foster a culture of respect, taking active steps to create workplaces that are a) legally compliant and b) empowering and safe for all employees.
A breach of this duty could be costly, if compensation for a claim of sexual harassment is awarded, a Tribunal can award an uplift of up to 25%, as compensation is uncapped, the financial consequence could be significant. Further, the EHRC has powers to investigate and take enforcement action, this can be the case even where there is only a suspicion of non-compliance!
For advice on this area please contact Louise Brenlund, Partner and Head of Employment at Warners Solicitors on 01732 375325, [email protected]
