New ECHR Guidance

Each month we will be asking a question on a hot topic to one of our employment specialists. This month, Molly Mackay, Solicitor considers the upcoming new obligation on employers to precent sexual harassment in the workplace.

‘We are aware that there is a new, upcoming duty on employers regarding the prevention of sexual harassment. What does this mean and what do we need to do as a business to prepare for this?’

From 26 October 2024, there will be a new mandatory duty in place for employers, which compels them to take reasonable steps to prevent sexual harassment of employees, during their employment. The upcoming duty expects employers to take pre-emptive steps starting as soon as possible, to consider what they can do ahead of any complaints/incidents of harassment occurring.

It is expected that employers should be continually reviewing their measures and updating these as needed – it will not be sufficient to have a single and stand-alone update. This is because where sexual harassment claims are successfully upheld in an Employment Tribunal, the compensation awarded can be increased by up to 25% for breaches of the duty.

Whilst it has not been clarified exactly what will be considered to be ‘reasonable steps’, we can anticipate some likely actions that employers can take to get prepared and comply with their new obligations:

1. Having a clear and regularly updated policy which deals with how instances of sexual harassment will be treated;
2. Having mandatory training for staff on what amounts to sexual harassment, the expected behaviours and extra training for managers on handling these complaints;
3. Having a zero-tolerance workplace culture in relation to sexual harassment, which is openly supported by senior management;
4. Having a clear process through which staff are able to make a complaint, whilst encouraging them to do so;
5. Having regular staff surveys to determine the extent of any problems/risks;
6. Adopting measures to help reduce the risk of sexual harassment by third parties;
7. Monitoring the progress of sexual harassment complaints to ensure they are properly investigated and resolved and that repeat offenders are appropriately dealt with; and
8. Having ‘workplace champions’ in place for those who experience or witness sexual harassment, thereby offering an additional layer of support.

It is anticipated that the finalised guidance on the new duty will be released this month and will hopefully provide more details on what reasonable steps could entail. It is however likely that these will depend on the size, resources and industry of the employer.

Employers should therefore take positive steps to begin implementing these measures, to ensure they are ready and compliant ahead of the introduction of the new duty.  It is also anticipated that the new government will re-introduce extending this obligation to taking all steps to prevent sexual harassment in the workplace, and therefore it is important employers take a firm stance on preventing this behaviour, and protecting their workers.