As of Oct. 26, a new statutory duty under the Worker Protection (Amendment of Equality Act 2010) Act 2023 will require employers in England and Wales to take reasonable steps to prevent sexual harassment in the workplace.
According to Clyde & Co partner Paula Jefferson, this legislation introduces a new risk area for employers, with a potential compensation uplift of up to 25% in Employment Tribunal claims for breaches of this duty.
Jefferson noted that the new duty comes as allegations of workplace harassment continue to surface across various sectors, with recent high-profile cases underscoring the need for robust preventative measures.
“The dynamics of the workplace, where differentials in power are inevitable, means the potential for abuse to occur always exists,” she said, emphasizing the importance of safeguarding across all organizations.
To support compliance, new Technical Guidance on Sexual Harassment and Harassment at Work has been issued, providing detailed examples of preventive measures. Jefferson highlighted the need for organizations to create a culture where employees feel safe to report harassment, including through anonymous mechanisms.
Immediate, consistent, and sensitive handling of such reports is crucial, and employers are encouraged to use the outcome of investigations to address potential risk areas or cultural issues.
Jefferson suggested that a low-level concerns policy, commonly seen in educational settings, can be adapted for workplaces. This policy would allow employees to report behavior that makes them uncomfortable, without the formalities of whistleblowing. Monitoring these reports can help employers address patterns of low-level behavior before they escalate into more serious incidents.
The new guidance outlines several key actions employers can take to comply with the statutory duty. Jefferson noted that conducting a risk assessment is an important first step to identify factors that might 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 critical. This policy should be communicated to staff, including new hires during induction, and made accessible to non-employees.
Jefferson advised employers to consider whether the policy should be shared with contractors or published on the company website to demonstrate a commitment to safe workplace practices.
Engagement with employees through surveys, focus groups, and open-door policies can help employers understand where potential issues lie and assess the effectiveness of their preventive measures. According to Jefferson, ongoing engagement is necessary, with employers staying alert to warning signs like increased absences or changes in behaviour and performance.
Training remains a cornerstone of harassment prevention. Jefferson emphasized that employers should conduct 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 needed for different levels of seniority or departments.
The guidance also warns against the overuse of confidentiality clauses. Jefferson stressed that these clauses should be applied only when lawful, necessary, and appropriate, as they should not restrict workers from speaking out about harassment.
Employers are encouraged to address power imbalances and workplace culture issues by conducting culture audits and implementing initiatives like internal campaigns or appointing harassment champions. According to Jefferson, a strong message from senior leadership can reinforce an organization’s commitment to addressing harassment.
The new statutory duty could lead to an increase in claims, with recent data showing a 46.5% rise in Employment Tribunal cases relating to sexual harassment since 2019. Jefferson advised employers to maintain detailed records of all actions taken to prevent harassment, as these can serve as evidence of compliance in case of a legal dispute. Proper documentation may help protect organizations from liability if they can demonstrate that reasonable steps were taken.
Jefferson said that while legal compliance is essential, the broader objective for employers should be to foster safer, more inclusive work environments.
“Employers need to bring about systemic change not only to reduce their risk of claims but to create safer, more positive, and inclusive work environments,” she said.
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