Reminder of the changes to the law on Sexual Harassment in the workplace - from 26th October.

We have seen some big corporates publicly facing sexual harassment claims, namely the CBI, MacDonalds and the BBC.

Whilst they are high profile corporates, with hundreds of employees - this type of claim can also happen in any business - large or small.

What is changing?

On 26th October 2024, a new positive duty to prevent sexual harassment comes into force, affecting all employers of all sizes in England, Scotland and Wales.

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

The key to these changes is the new duty will place an "anticipatory duty" on all employers.

In other words, employers must anticipate situations in which workers may be subjected to sexual harassment in the course of employment and take action to prevent the harassment taking place.

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

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

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 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.

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.

✔️ Provide anti-harassment training for all staff and 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.