After a brief period of consultation the updated technical guidance has been published.
What is the new duty?
The Act introduces a new duty on employers to take reasonable steps to prevent sexual harassment of their workers – referred to as "the preventative duty". According to the updated guidance the preventative duty is an anticipatory duty designed to transform workplace cultures by requiring employers to take positive and proactive steps to prevent harassment of their workers.
Compensation in sexual harassment claims can be increased by up to 25% when the employer is found not to have met the preventative duty. The EHRC also has the power to take enforcement action where there is evidence of organisations failing to take reasonable steps to prevent sexual harassment.
What does the updated technical guidance say?
The technical guidance provides a useful overview of some of the key points employers need to be considering, including:
- Policies and procedures - Developing and widely communicating a robust anti-harassment policy, which includes third party harassment.
- Risk assessments – Undertaking regular risk assessments to identify where sexual harassment may occur and the steps that will be taken to prevent it. The guidance could not be clearer – "an employer is unlikely to be able to comply with the preventative duty unless they carry out a risk assessment".
- Training – Training workers, managers and senior staff on what sexual harassment in the workplace looks like, what to do if they experience or witness it and how to handle complaints of harassment.
- Monitoring – Being proactively aware of what is happening in the workplace and any warning signs. Lessons learned sessions and exit interviews are both suggested as useful tools to help with evaluation of the effectiveness of measures taken.
This sounds straightforward enough, however, the technical guidance recognises that what is reasonable will vary from employer to employer. The law does not list specific steps an employer must take. Engaging the workforce on creating a safe environment free from poor behaviour has never been more important.
How much is enough when it comes to preparing for the new duty on prevention of sexual harassment at work?
This is not a tick box exercise. Carrying out the measures set out in the guidance will of course put employers in a stronger position but the key is to engage the business in a cultural movement whereby dignity, trust and respect in the workplace are viewed as intrinsic values and supported by all. Leaders play a crucial role in creating an inclusive and prosperous environment for their employees, customers, suppliers, shareholders, investors and communities – an environment where basic human rights are respected, where there is no place for sexual harassment and indeed no place for harassment of any sort.
The new duty provides an opportunity for employers to recalibrate and put workplace culture front and centre of their business strategy, and reap the rewards of increased productivity, higher attraction and retention rates, reduced sickness and increased profitability - not to mention the reduced risk of claims.
Sounds good? We are running a series of roundtables over the coming weeks where we will ask the question – how much is enough? We will discuss the new duty on employers and how employers can put crucial steps in place to help ensure workplace conduct is in line with company values. Remembering this is an anticipatory duty, it is essential for employers to take affirmative action now. According to the technical guidance - "Employers should not wait until a complaint of sexual harassment has been raised before they take any action. The duty requires that employers should anticipate scenarios when its workers may be subject to sexual harassment in the course of employment and take action to prevent such harassment taking place."
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