Employers will certainly be familiar with their duties under the Equality Act 2010 (“the Act”), a well-established piece of legislation that consolidated workplace best practice and introduced robust legal protections for employees and workers. And whilst employees could already expect to be protected from sexual harassment, discrimination and victimisation under the Act, persistent reports of poor behaviour prompted Parliament to introduce an additional positive legal duty on employers to proactively improve workplace culture and practices. One year on from the introduction of the anticipatory duty, this reflection serves as an opportune reminder to employers to review their polices and assess ongoing compliance - particularly as the Employment Rights Bill (“ERB”) makes its final way through Parliament and proposes to raise the bar even higher.
What is the ‘preventive’ or ‘anticipatory’ duty?
The Worker Protection (Amendment of Equality Act 2010) Act 2023 came into force on 26 October 2024 and introduced a duty on employers to take reasonable steps to prevent sexual harassment of their employees. According to the Office for Equality and Opportunity, this new measure was introduced to “boost economic growth by tackling poor productivity, insecure work and broken industry relations.” The new duty shifted the focus from a traditionally reactive approach to responding to allegations of sexual harassment in the workplace, to an anticipatory duty to identify risks and take steps to mitigate them. Note, that the ERB further proposes that employers should take ‘all reasonable steps’.
Guidance for employers on understanding their legal responsibilities and developing appropriate plans and policies has been published by the Advisory Conciliation and Arbitration Service (“Acas”) and the Equality and Human Rights Commission (“EHRC”). This includes which behaviour needs to be addressed and how complaints should be handled.
No definitive list of actions is available to employers in relation to which ‘reasonable steps’ should be taken to ensure compliance. This will depend on the size, resources and risk profile of an organisation. However, as a starting point, Acas suggests that employers adopt a zero-tolerance approach to sexual harassment and encourage a culture where such behaviour is understood to be unacceptable. There is also an expectation on employers to have clear policies and procedures in place to ensure staff behaviour is managed effectively, and to create an environment where people feel safe to report incidents.
What is sexual harassment?
Sexual harassment is defined as “unwanted conduct of a sexual nature, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.”
Furthermore, harassment includes less favourable treatment of a worker because they submit to, or reject, sexual harassment or harassment related to sex or gender reassignment. This can also include harassment that occurs outside of working hours if there is a sufficient connection with work.
Acas has provided examples including:
- flirting, gesturing or making sexual remarks about someone's body, clothing or appearance
- asking questions about someone's sex life
- telling sexually offensive jokes, making sexual comments or jokes about someone's sexual orientation or gender reassignment
- displaying or sharing pornographic or sexual images, or other sexual content
- touching someone against their will, for example, hugging them
- sexual assault or rape
The EHRC adds that “what one worker – or even a majority of workers - might see as harmless fun or ‘banter’, another may find unacceptable.” Ultimately, in deciding whether the conduct is unwanted or unacceptable, it is important to understand the perception of the worker and how they regard the treatment.
What are the risks of failing to comply with the additional requirements?
Employers naturally risk significant reputational damage if they fail to deal with allegations of sexual harassment in the workplace, in addition to staff grievances, increased turnover and costly employment tribunal claims. Additionally, where an employment tribunal upholds a claim for sexual harassment, it now has discretion to award a compensation uplift (of up to 25%) where there has been a breach of the employer’s duty to take reasonable steps to prevent unwanted sexual conduct in the workplace.
In particularly serious situations, employers also face possible enforcement action by the EHRC, which now has the following powers under the new legislation:
- undertake an investigation
- issue an unlawful act notice
- enter into an agreement with the employer to prevent future unlawful acts
- seek an injunction to restrain an employer from undertaking an unlawful act
Failure to comply with notices from the EHRC could lead to court action where unlimited fines can be issued.
A reminder of best practice
Robust policies
Employers are advised to review their policies to ensure they are clear, up to date and accessible to all employees. They should ideally include examples of behaviours that are unacceptable and appropriate sanctions if employees are in breach of such policies.
Risk assessments
Employers should regularly risk assess the work environment, including work-related events, and maintain clear records and evidence of ongoing monitoring. It is also advisable to regularly run staff surveys to assess if additional preventative steps are necessary.
Mandatory training
Managers should be trained on how to implement policies and handle inappropriate behaviour and also be reminded of the importance of conducting prompt and effective investigations into any concerns. Additionally, employees should receive regular mandatory training on the standards of behaviour expected in the workplace, which includes zero tolerance of discrimination and harassment. Attendance at such equality and diversity training sessions should be recorded, and employees should be advised of how to raise complaints and reassured that they will be handled sensitively and confidentially.
Effective investigations
It is essential that investigations into allegations are undertaken without unreasonable delay and, in the event the allegations are proven, they should be considered to be gross misconduct.
Employee support
Employers should ensure details of help and support is available to anyone affected by sexual harassment, for example access to an employee assistance programme or external sources. It may also be appropriate to offer paid time off for sickness absence in certain circumstances.
Our expert employment lawyers at Weightmans are here to help businesses comply with their duties under the Equality Act 2010 and prepare for further changes under the Employment Rights Bill. We can review your policies and procedures and advise on how to reasonably and sensitively handle internal grievances, investigations and disciplinary hearings. Furthermore, we regularly deliver training for team managers and HR professionals who are responsible for navigating difficult behaviour in the workplace and ultimately creating a positive and inclusive work culture.
