Next month, the law on preventing sexual harassment in the workplace will be changing. With sexual harassment remaining a prevalent issue across all industries, including within sport in general and football in particular, the new Worker Protection (Amendment of Equality Act 2010) Act 2023 (the “Act”), which comes into force on 26 October 2024, introduces a new duty on employers to take “reasonable steps” to prevent sexual harassment of their employees in the course of their employment – whether perpetrated by colleagues, or by any third party (e.g. suppliers or customers). Although taking reasonable steps to prevent sexual harassment is already good practice (and, from a legal perspective, is important for a host of other, existing legal duties for employers), the Act will impose a higher bar for employers to act proactively to reduce the risks of sexual harassment occurring, with the potential for significant compensation if they fail in this duty.
What is Sexual Harassment?
Sexual harassment is any unwanted conduct of a sexual nature that has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating of offensive environment for them. It can include anything from comments of a sexual nature to serious sexual assaults, and the Act supplements the existing duties of care that employers have in relation to ensuring the health and safety of their staff, including by trying to protect them from all forms of harassment.
The New Preventative Duty
Under the new duty, employers must take reasonable steps to prevent sexual harassment by taking action both before an incident takes place (by anticipating scenarios where its workers may be subject to sexual harassment) and, if sexual harassment occurs, to try to stop it from happening again. There are no set minimum standards that an employer must meet to comply with the duty, and what will constitute “reasonable steps” will depend on a host of different factors including the employer’s size, the particular nature of their workplace (and the consequent likelihood of staff being subjected to sexual harassment in the course of their employment) and the types of risks present. For example, stadium staff that regularly deal with fans in a crowd environment, particularly if fans are likely to have consumed alcohol, may be at greater risk than staff working in an office environment. Therefore, it is important for employers to undertake risk assessments in respect of the likelihood of staff being subjected to sexual harassment in various different parts of the business, and to tailor preventative/risk-management steps accordingly.
If an employer does not comply with the new duty, the Equality and Human Rights Commission (“EHRC”) has investigatory and enforcement powers, including to ‘name and shame’ employers that fail in their duties. Additionally, if an Employment Tribunal orders compensation in relation to any case that involves any issues of sexual harassment (even if those issues did not form the basis for the relevant claim) and the employer has breached the duty, the Tribunal may increase the overall compensation award by up to 25%, so there are potentially significant financial penalties for failing to meet the requirements.
Preparing for the New Preventative Duty
To be prepared for the Act coming into force, employers should consider and implement reasonable steps to prevent sexual harassment now. The EHRC has published draft guidance which may help (in general terms) to some extent; however, unhelpfully given how soon the legal duty will come into force, this is not yet in final form, and in any case its suggestions will not necessarily be appropriate to all circumstances. For the time being, it is likely that suitable minimum steps will include:
Due to the open-ended and flexible extent of the duty, employers must take time to properly consider where the risks lie for different roles and different departments, and what practical steps ought to be taken to comply with the new duty. For additional support and guidance, Centrefield offers training on the new legislation and practical steps that can be taken to comply with it, and we can also assist and advise on other measures employers can take, including to review and update relevant policies and procedures.