How to prepare for the new duty to prevent sexual harassment in the workplace.
On 26 October 2024 the long awaited and debated proactive duty on employers to prevent sexual harassment will become a reality with the Worker Protection (Amendment of Equality Act 2010) Act 2023 coming into force. It is important that schools are aware of its impending introduction and are prepared for its implementation.
What is changing?
The new legislation amends the Equality Act 2010 to:
- Impose a duty on employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment.
- Give employment tribunals the power to uplift sexual harassment compensation by up to 25%, where an employer has breached the new duty to prevent sexual harassment.
It will not apply where other forms of harassment are alleged (for example, harassment related to disability, age, religion or belief). It will also not apply if the harassment is generally related to sex but is not sexual in nature.
The Equality and Human Rights Commission (EHRC) technical guidance on sexual harassment and harassment at work provides that employers will also have a duty to take reasonable steps to prevent sexual harassment by third parties e.g. contractors. If an employer does not take reasonable steps to prevent sexual harassment of their employee by either co-workers or third parties, the new preventive duty will be breached by the employer.
What are reasonable steps?
Schools should be considering what reasonable steps they should be taking to help protect their staff from sexual harassment.
What is considered to be ‘reasonable steps’ will vary from employer to employer and will depend on factors such as (but not limited to) the employer’s size, the sector it operates in, the working environment and its resources. There will be no particular criteria or minimum standards an employer must meet. Different employers may prevent sexual harassment in different ways, but no employer is exempt from the new sexual harassment preventative duty.
Whether or not an employer has taken reasonable steps is an objective test and will depend on the facts and circumstances of each situation.
How can schools prepare?
Many schools will already be taking steps to prevent sexual harassment. What is expected of staff in terms of behaviour is set out in the school’s staff code of conduct. If not already included, this would be a good place to set out what is unacceptable behaviour.
If schools have not yet done so, we recommend they:
- consider the risks of sexual harassment occurring in the course of employment. In a boarding environment this may be more of a risk
- consider what steps they could take to reduce those risks and prevent sexual harassment of their workers
- consider which of those steps it would be reasonable for them to take
- implement those reasonable steps.
Sexual harassment could be a one-off incident or recurring behaviour. It can occur in a number of different ways. For instance, it might include telling sexually offensive jokes, sharing pornographic or sexual images, making sexual remarks about someone’s appearance or touching someone against their will.
We recommend that schools also arrange some training on this issue.
How Moore Barlow can help
We would be delighted to help you implement a new policy/add provisions to your staff code of conduct and to provide training to your staff. Please reach out to your usual contact in our Independent schools team.
