What is the new duty on employers to prevent sexual harassment?

Q: I’m confused about the new duty to proactively prevent discrimination or sexual harassment. I already have all the policies in place setting out expectations for behaviour, making it clear that harassment of any kind will not be tolerated, and processes for reporting unwanted behaviours or whistleblowing. What more can I do?
A: As the law stands, employers have to show only that they have taken all reasonable steps to prevent an issue. If an employee brings a claim to an employment tribunal and the employer can show they did their utmost to prevent it, they can avoid vicarious liability.
This means that if an employee of an organisation discriminates against or harasses someone, the employer can remove themselves from the responsibility. But if they cannot show that they took these steps, they will be liable for the actions of the employee.
On October 26, a new duty will be introduced on employers to take proactive action to prevent sexual harassment. When this comes into effect, workers can make a referral to the Equality and Human Rights Commission at any point to say that their employer is not taking reasonable steps to prevent sexual harassment. This means that an employer will need to show that reasonable steps have been taken — even when no claim of harassment has been made.
Draft guidance has been issued for employers on meeting the duty, which the commission intends to finalise in September.
Employers will be required to anticipate scenarios when workers may be subject to sexual harassment in the course of their employment and take action to prevent it taking place. If sexual harassment has taken place, the preventive duty means an employer should take action to stop it happening again.
What is reasonable will vary and will depend on factors such as the size of the business, the sector in which it operates and the risks present in the workplace.
Examples of steps employers could take include:
• Having a sexual harassment policy in place• Training all staff on sexual harassment, appropriate behaviour and how to keep themselves safe• Assessing the risk• Encouraging a culture of transparency — workers should feel able to speak up without fear that they won’t be taken seriously or concern about repercussions• Having clear procedures so everyone knows how to report concerns and what action will be taken• Communication of a zero-tolerance approach to any form of harassment• Support for anyone who does suffer bullying or harassment
This is not an exhaustive list but it sounds like you are starting from a good place with the steps you have in place.
You don’t mention what industry you are in but certain industries, such as hospitality, have additional risks and extra duties on employers. Research found that more than half of women and two thirds of lesbian, gay, bisexual and transgender people report experiencing workplace sexual harassment. The problem is particularly acute in hospitality.
Industry-specific considerations for hospitality include putting measures in place to protect employees and setting a zero-tolerance approach to sexual harassment, including ensuring employees don’t work alone; serving large customer parties in groups of at least two; making sure employees have someone they can report allegations to other than a line manager; having two people decide on the work rota, pointing out to employees that social events after work are seen as an extension of the workplace.
Sexual harassment is any unwanted behaviour of a sexual nature that makes someone feel intimidated, degraded, humiliated or offended, even if that is not the intent. Examples include flirting, gesturing or making sexual remarks about someone’s body, clothing or appearance; telling sexually offensive jokes; asking questions about someone’s sex life; making sexual comments or jokes about someone’s sexual orientation or gender reassignment, or touching someone against their will, including hugging or massaging.
Sexual harassment is not limited to in-person conduct. It also includes unwanted behaviour from messages, emails and phone calls.
Once the new rules are in force, a complaint can be made to the commission which has the power to take enforcement action against the employer, even if no actual allegations have been made.
If a claim of sexual harassment is brought in an employment tribunal, then the panel or judge must consider if and to what extent the employer has complied with the preventive duty. If the tribunal finds that the preventive duty has been breached, it may increase the amount of compensation awarded by up to 25 per cent.
Peter Done is co-founder and managing director of Peninsula, an employment law, HR and health and safety advice specialist
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