Sexual harrassment in the workplace - Are you ready for 26 October 2024?

Sexual harassment is defined as unwanted conduct of a sexual nature which has the purpose or effect of violating the victim's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them (s26 Equality Act 2010).

From 26 October 2024, the following will apply:

1. If the employer does nothing to prevent the harassment it will be liable, and the tribunal can increase any compensation awarded by up to 25%.
2. If the employer takes some reasonable steps to prevent harassment, it will still be liable, but no uplift will be applied to the compensation award.
3. If the employer took all reasonable steps to prevent harassment, it will not be liable at all and no compensation will be awarded (as with discrimination claims generally, the 'victim' is able to pursue a claim against individual perpetrator(s) as well as their employer).

Whilst having systems, workplace practices and a workplace culture that seeks to prevent harassment from occurring (both from within the organisation or from third parties), claims inevitably arise from time-to-time. It is, therefore, in all employers' interests to be in a position to argue that option 3 above should apply if necessary.

Having policies and practices in place, which all employees have access to, is a start, but that alone will not be enough. Training will be required to bring the policies to life in a practical and positive way. That training should enable employees to:

• have a clear understanding of what sexual harassment is;
• have a clear statement of required workplace behaviour, including behaviour at work-related social events and in online communications;
• understand what is appropriate and what isn't, particularly in the 'grey' areas such as workplace 'banter';
• know what to do if they experience (or witness) harassment;
• know what to do if harassment is reported to them; and
• know what the business will do if they are found to have committed an act of harassment.

There are, of course, a huge variety of workplace environments (linked to employer size, the sector it operates in and its resources). The realities of working life, and therefore culture, vary enormously between them. As such, it is important for employers to tailor their training to their own workplace environment, ensuring it is relevant, practical and effective, and that appropriate monitoring by senior management/HR is ongoing. Understand where your vulnerabilities might be and therefore reduce the potential for sexual harassment. Avoid a simple tick-box and generic approach to training. 

If you have any employee representative bodies, consider consulting with them as part of the overall process. The Equality and Human Rights Commission (EHRC) will shortly be publishing its updated statutory guidance on preventing sexual harassment in the workplace, which will deal with the risk assessment approach and business-specific preventative steps it proposes as part of this new legal obligation on employers. Being able to show that you have taken active steps to comply with that guidance will be important. It should also be noted that the EHRC will also have power to take enforcement action against employers.

In short, employers are now being required to do something proactive to protect employees, and themselves. This should start from the top and work its way down through all layers of your business.