Navigating the New Employer Duty to Prevent Sexual Harassment: A Guide for Employers and HR Professionals
19th Sep 2024
Author: Mohammed Balal
The Worker Protection (Amendment of Equality Act 2010) Act 2023 introduces critical update to the Equality Act 2010, focusing on preventing sexual harassment in the workplace. The key change comes through the addition of Section 40A, which places a new legal duty on employers to take proactive steps to prevent sexual harassment.
In this blog, Mohammed Balal, Employment Law specialist, breaks down the legislation, outlines practical steps for compliance, and discusses its broader implications for workplace culture, employee protection, and business performance.
Definition of Sexual Harassment
Sexual harassment, as defined in Section 26(2) of the Equality Act 2010, refers to any unwanted conduct of a sexual nature that has the purpose or effect of:
- Violating an individual’s dignity, or
- Creating an intimidating, hostile, degrading, humiliating, or offensive environment for them.
- A engages in unwanted conduct of a sexual nature, and
- the conduct has the purpose or effect referred to in subsection (1)(b)
This definition covers a wide range of behaviours, from overt actions such as inappropriate comments and physical advances to more subtle forms of harassment. Importantly, the focus is on how the behaviour is perceived and its effect on the individual, meaning that even actions that might seem minor can be considered harassment if they contribute to an hostile working environment.
The EHRC guidance on harassment gives various examples of unwanted conduct:
- Spoken words
- Banter
- Written words
- Posts or contact on social media
- Imagery
- Graffiti
- Physical gestures
- Facial expressions
- Mimicry
- Jokes or pranks
- Acts affecting a person’s surroundings
- Aggression
- Physical behaviour towards a person or their property
Understanding the wide range of behaviours that fall under this definition is crucial for employers. It ensures you can take the right steps to prevent both overt and subtle forms of harassment from affecting your workplace.
The EHRC technical guidance advises that unwanted conduct of a sexual nature includes a range of behaviours, such as:
- Sexual comments or jokes
- Displaying sexually graphic pictures, posters or photos
- Suggestive looks, staring or leering
- Propositions and sexual advances
- Making promises in return for sexual favours
- Sexual gestures
- Intrusive questions about a person’s private or sex life, or a person discussing their own sex life
- Sexual posts or contact on social media
- Spreading sexual rumours about a person
- Sending sexually explicit emails or text messages
- Unwelcome touching, hugging, massaging or kissing
What is Section 40A and Why Does it Matter?
The enactment of Section 40A of the Worker Protection (Amendment of Equality Act 2010) Act 2023 signifies a transformative shift in how sexual harassment is addressed in the workplace.
Historically, the approach to sexual harassment was to react to incidents as they occur. Section 40A turns this on its head with a proactive approach, requiring employers to take “reasonable steps” to prevent sexual harassment within their organisation. Employers must now demonstrate that they have implemented measures to prevent harassment before incidents occur, rather than simply responding after the fact.
This change is all about creating a safer, more respectful working environment where employees feel protected. It also establishes clearer responsibilities for employers, meaning that taking preventative action is no longer just a best practice—it’s a legal requirement.
Key Requirements of Section 40A: What Employers Need to Know
Duty to Prevent Sexual Harassment
The heart of this new rule is simple: employers must take reasonable steps to stop sexual harassment from happening. This includes “unwanted conduct of a sexual nature” that violates a person’s dignity or creates a hostile, intimidating, or offensive environment.
The law covers a broad spectrum of behaviours, and while some actions are obvious, others might be more subtle, but equally damaging to your workplace culture.
Employers must now be much more proactive and actively implement measures designed to prevent harassment, which may include developing comprehensive anti-harassment policies, conducting regular training, and fostering a culture of respect and inclusivity. The emphasis is on a proactive approach that seeks to address potential issues before they manifest as actual incidents of harassment.
What happens if you do not comply?
Employers who fail to meet their duty under Section 40A can face serious repercussions. The Equality and Human Rights Commission (EHRC) may investigate, impose fines, or require corrective actions. Employees can also file claims through employment tribunals, seeking compensation for harassment. In severe cases, compensation awards may be increased.
Beyond the legal and financial implications, there’s the risk to your reputation. Failing to address harassment could harm your organisation’s image, making it harder to retain staff and attract top talent. In short, staying compliant isn’t just about avoiding legal trouble—it’s about protecting your business in every sense.
Steps Employers Should Take to Ensure Compliance
Here are some key steps employers can take to make sure they’re meeting their new obligations under Section 40A:
Develop Comprehensive Anti-Harassment Policies
Your policy must go beyond simply stating that harassment is not tolerated – it needs to be specific. It should provide clear definitions of sexual harassment and examples of inappropriate behaviour, helping employees understand what constitutes harassment.
It should also outline clear and straightforward reporting procedures with multiple ways for employees to raise concerns to ensure that everyone feel supported and safe when making complaints.
Implement Training Programmes
Training is essential for creating a workplace that understands and respects anti-harassment measures. Mandatory training should be provided for all employees, including management, to educate them on the definitions, reporting processes, and potential consequences of sexual harassment.
You should ensure that training materials are regularly updated to reflect legal changes and industry best practices. Using interactive methods such as case studies or role-playing scenarios can enhance engagement and retention of information.
Monitor and Review Your Anti-Harassment Strategy
It is important to regularly review and audit your anti-harassment policies and training to ensure they remain effective. Employers should collect feedback from employees, review reported incidents, and make necessary adjustments to policies and procedures based on audit results.
You should also set up clear channels for employees to provide feedback on the workplace environment and the effectiveness of anti-harassment measures.
Implications for Employers: Legal, Financial, and Reputational Risks
Non-compliance with Section 40A can lead to significant legal and financial consequences:
Increased Legal Liability
Non-compliance with Section 40A can expose employers to legal risks, including claims of failing to prevent harassment. An employment tribunal could impose compensation claims with potential “uplift” for sexual harassment cases, leading to significant financial consequences.
Financial Penalties
In addition to litigation costs, employers may face fines and other penalties if found to be in breach of the law. These costs, coupled with potential payouts for compensation claims, can have a detrimental impact on the business’s bottom line.
Reputation and Talent Retention
Employers that fail to adequately address sexual harassment risk damaging their reputation, which can affect their ability to attract and retain top talent. A safe, respectful workplace fosters employee trust and contributes to positive public perception of the business.
Creating a Positive Workplace Culture: Long-Term Benefits of Compliance
The proactive approach mandated by Section 40A is expected to significantly enhance workplace culture. By emphasising prevention, employers will:
Improved Employee Morale and Engagement
A work environment where employees feel safe and respected can lead to increased morale, job satisfaction, and overall productivity. Employees who know that their employer takes harassment seriously are more likely to feel empowered and valued.
Reduced Absenteeism and Turnover
Sexual harassment is not only damaging to victims but also detrimental to the overall workplace atmosphere. Harassment can lead to stress, anxiety, and even burnout, causing people to leave your company. Preventing harassment helps keep your best people around for longer.
Building Organisational Trust
When employees trust that management is committed to maintaining a respectful workplace, they are more likely to feel loyal to the organisation. This can improve communication, collaboration, and overall business performance.
Conclusion
The Worker Protection (Amendment of Equality Act 2010) Act 2023 and the introduction of Section 40A signals a new era of employer responsibility. It is now more important than ever for employers and HR professionals to take active steps to prevent sexual harassment in the workplace.
By imposing a proactive duty on employers to prevent harassment, the Act aims to create a safer, more respectful work environment. Employers must take this responsibility seriously by developing comprehensive policies, providing regular training, and continuously monitoring practices. Ultimately, this will safeguard your business from legal and financial risks while fostering an environment where everyone feels valued and respected.
How can Butcher & Barlow help your business comply with Section 40A?
Butcher & Barlow can support your business in complying with the new Section 40A by offering practical, hands on and comprehensive training to business owners and HR professionals. Our tailored training sessions, carried out either in person or remotely, focus on understanding the new legal obligations, recognising behaviours that could contribute to harassment, and implementing robust preventative measures.
We work closely with you to ensure that your anti-harassment policies are both effective and compliant with the latest legislation. We can assist in drafting or revising policies to reflect these changes and provide ongoing support as you monitor and review your anti-harassment strategies.
Our Team will guide you in creating a culture of respect, empowering your staff to foster a safe and inclusive workplace.
Mohammed can be contacted on mbalal@butcher-barlow.co.uk or on 0161 764 4062
Look out for our next blog in this series which will explain more about the enforcement of Section 40A and the consequences should sexual harassment be ruled to have taken place.