Important changes to the law on Sexual Harassment in the workplace

What is changing?

From 26th October 2024, the law that applies to harassment will be strengthened to include sexual harassment.

Currently under the Equality Act 2010, an employer can defend a harassment claim if it can show that it took ‘all reasonable steps’ to prevent it from happening in the first place.

What is the main feature?

This new law from October will go one step further by specifically including sexual harassment and placing a proactive duty on employers to prevent sexual harassment in the workplace.

Sexual harassment is defined as relating to sex and not to gender (male or female).

What is the difference between sex-based harassment and sexual harassment?

Sex-based harassment and sexual harassment are identified as separate forms of unlawful discrimination in the Equality Act 2010. Both types of harassment involve conduct that is unwanted from the perspective of the person on the receiving end and has the purpose or effect either of violating the person's dignity or of creating an environment that they find intimidating, hostile, degrading, humiliating or offensive.

Sex-based harassment means unwanted conduct that is related to an individual's sex or the sex of another person, while sexual harassment is defined as "unwanted conduct of a sexual nature".

Examples of sex-based harassment will not, therefore, be sexual in nature but will be behaviour that is linked in some way to gender and causes offence to an individual. An example could be where an employee is constantly telling derogatory or demeaning jokes about women generally and this is found to be unwelcome and offensive.

Sexual harassment on the other hand is behaviour that has a sexual content or sexual connotation. Examples could include unwelcome physical touching, making sexual remarks to or about a person, telling jokes with a sexual content or displaying sexually explicit images on a computer screen.

What is a ‘workplace’?

The term ‘workplace’ has a wide meaning. As well as the normal working premises, the ‘workplace’ can include social events such as Christmas parties which have been organised by the employer.

Also included can be acts of harassment which take place online, for example via Whatsapp or on social media.

EHRC Guidance

The Equality and Human Rights Commission have published detailed guidance on harassment and sexual harassment in the workplace.

The guidance sets out that the new duty is anticipatory rather than reactive. Employers will be required to carefully assess the risk of sexual harassment happening in their business and actively take steps to prevent it from happening in the future, including looking into situations where it has happened before.

Employers that take a passive or reactive approach to sexual harassment are likely to find themselves in breach of the new duty.

What are ‘reasonable steps’?

A key question for employers is going to be what are the "reasonable steps" to prevent sexual harassment.

“Reasonable” will be objective and will vary from employer to employer.

Factors that could influence what is reasonable in a business could include:

• the size of the employer,

• the sector it operates in,

• the working environment and its resources,

• the types of third parties employees may come into contact with,

How should employers prepare?

✔️ Take a zero tolerance approach to harassment of any kind.

✔️ Ensure that you have an anti-harassment policy in place and that it covers sexual harassment.

✔️ Ensure this new duty is communicated effectively to both employees and contractors.

✔️ Raise awareness to all staff about what sexual harassment is. Ensure they are aware that conduct of a sexual nature is strictly off-limits in the workplace, including comments, jokes or "banter" related to sex, as well as other forms of harassment.

✔️ Ensure staff are aware of how to identify different types of harassment, including sexual harassment, how to tackle it and how to report it. Encourage a ‘speak up’ culture.

✔️ Train your managers on how to handle complaints of sexual harassment in the workplace.

✔️ Don’t ignore complaints by employees about third party harassment, for example from clients, suppliers or contractors.

✔️ Carry out an audit to identify areas of specific risk in the business. Every business will have different weak areas where sexual harassment may be more likely to occur. This could be specific areas or particular groups more at risk. Take steps to address this.

If you have any questions or concerns, then please contact the Hill HR team.