PREVENTION IS BETTER THAN CURE

On 26 October, a new section will be inserted into the Equality Act as the Worker Protection Act 2023 comes into force. The new Section 40A imposes a duty on employers to take reasonable steps to prevent the sexual harassment of their employees during the course of their employment. The new duty will be enforceable by the EHRC; in addition, where an employee brings a successful claim following an act of harassment, tribunals will be able to uplift their compensation by up to 25% if it is found that the employer has breached the ‘prevent’ duty.
 
The EHRC is in the process of updating its guidance but has suggested that the amended guidance will reflect the following principles:

• the preventative duty is anticipatory (i.e. stop it before it happens) and ongoing (i.e. stop it once it starts);
  

• the preventative duty only relates to sexual harassment, not harassment on the grounds of other protected characteristics, including sex;
  

• it only applies to sexual harassment during the course of employment (but remember that there is a string of case law on what this means which extends it to work-related events away from the workplace);
  

• what is ‘reasonable’ will be objective depending on the facts and circumstances of each case, with larger employers being expected to do more than SMEs.

 
In the light of this, and depending on the size of your business, we recommend that you consider the following:
 
1. If you don’t already have an Anti Bullying and Harassment policy, then introduce one. Make sure that this policy includes a specific section on Sexual Harassment.
 
2. Provide mandatory training to all staff on sexual harassment (what it is, the standards of behaviour expected and how to raise a complaint). Provide additional training for those who may be required to investigate allegations of sexual harassment.
 
3. Consider adopting a zero tolerance policy.
 
4. Ensure that there is a clear mechanism for reporting concerns/complaints.
 
5. Appoint workplace champions who can provide support and advice to those who are affected by sexual harassment.
 
6. Monitor complaints and complaint outcomes to ensure the effectiveness of the steps that you are taking.
 
7. Take measures to minimise the risk of harassment by third parties.
 
The more you can do now, the better, because the Labour government has indicated that it intends to amend the legislation to require employers to take all reasonable steps to prevent sexual harassment in the workplace. If the allegations in the news at the moment about what apparently went on at Harrods are anything to go by, this new law is very much needed. We are sure that our clients will embrace it. Please contact your usual Horsfield Menzies adviser if you require any support.