From October 26, a new legal duty under the Protection of Workers (Equality Act Amendment 2010) Act 2023 will require employers in England and Wales to take reasonable steps to prevent sexual harassment in the workplace.

According to Paula Jefferson, partner at Clyde & Co, this legislation introduces a new area of ​​risk for employers, with a potential increase in compensation of up to 25% in employment tribunal claims for breach of this duty.

Jefferson noted that this new requirement comes as allegations of workplace harassment continue to surface across various industries, with recent high-profile cases highlighting the need for robust preventative measures.

“The dynamics of the workplace, where power differentials are inevitable, mean the risk of abuse always exists,” she said, emphasizing the importance of safeguarding in all organizations.

To support compliance, new technical guidance on sexual harassment and workplace harassment has been published, providing detailed examples of preventative measures. Jefferson emphasized the need for organizations to create a culture in which employees feel safe to report harassment, including through anonymous mechanisms.

Immediate, consistent and sensitive handling of these reports is crucial, and employers are encouraged to use survey results to address potential risk areas or cultural issues.

Jefferson suggested that a policy of low-level concerns, commonly seen in educational settings, can be adapted to workplaces. This policy would allow employees to report behavior that makes them uncomfortable, without the whistleblower formalities. Monitoring these reports can help employers address low-level patterns of behavior before they escalate into more serious incidents.

Proactive steps

The new guidance outlines several key steps employers can take to comply with the legal duty. Jefferson emphasized that conducting a risk assessment is an important first step in identifying factors that may increase the likelihood of harassment. Employers should consider consulting with unions or employee representatives to understand perceived risks and create an action plan.

Establishing and regularly reviewing an anti-harassment policy is also essential. This policy must be communicated to staff, including new recruits during onboarding, and made accessible to non-employees.

Jefferson advised employers to consider whether the policy should be shared with contractors or posted on the company’s website to demonstrate their commitment to safe work practices.

Engaging with employees through surveys, focus groups and open-door policies can help employers understand where potential problems lie and evaluate the effectiveness of their preventative measures. According to Jefferson, ongoing engagement is necessary, with employers remaining alert to warning signs such as increased absences or changes in behavior and performance.

Training and legal compliance

Training remains a cornerstone of harassment prevention. Jefferson stressed that employers should hold regular training sessions to ensure all workers understand company policies, recognize what constitutes harassment and know how to report it. Training should also address third-party harassment, and tailored programs may be necessary for different seniority levels or departments.

The guidelines also warn against excessive reliance on confidentiality clauses. Jefferson emphasized that these clauses should only be enforced when legal, necessary and appropriate, as they should not prevent workers from reporting harassment.

Employers are encouraged to address power imbalances and workplace culture issues by conducting cultural audits and implementing initiatives such as internal campaigns or appointing harassment champions. According to Jefferson, a strong message from senior management can reinforce an organization’s commitment to combating harassment.

The new legal requirement could lead to an increase in claims, with recent data showing a 46.5% increase in sexual harassment cases in employment tribunals since 2019. Jefferson advised employers to keep detailed records of all actions taken to prevent harassment, as these can be useful. as proof of compliance in the event of a dispute. Proper documentation can help protect organizations from liability if they can demonstrate that reasonable steps have been taken.

Jefferson said that while compliance with the law is essential, the broader goal of employers should be to foster safer and more inclusive work environments.

“Employers need to make systemic changes not only to reduce their claims risks, but also to create safer, more positive and inclusive working environments,” she said.

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