Focus on audits and risk assessments ahead of new sexual harassment duty

On 26 October, a new proactive duty on employers to take ‘reasonable steps’ to prevent sexual harassment of their employees comes into force. What will it mean for employers? What should employers be doing now to prepare for it? We’ll ask a D&I specialist. 

A reminder. Under current law employers are liable for harassment committed by their workers in the course of employment, but they will have a defence if the employer can show that they took ‘all reasonable steps’ prevent it. The new law set out in the Worker Protection (Amendment of Equality Act 2010) Act 2023 goes further, creating a new positive legal obligation for employers to take reasonable steps to stop sexual harassment from happening. The aim is to shift employers’ focus towards taking proactive measures to identify risks and prevent sexual harassment from happening in the first place. If an employer breaches the new duty, the Equality and Human Rights Commission will have the power to take enforcement action against the employer and, if a claim is brought, employment tribunals will have the power to increase compensation for sexual harassment by up to 25%. There is also the risk of reputational damage as a result of being shown to have a culture where harassment exists, and/or is not addressed.

In July, the Equality and Human Rights Commission launched a 6-week consultation on proposed changes to its technical guidance on sexual harassment and harassment at work to take account of the new duty. As Helen Corden points out in her article for Out-Law, the Commission is recommending employers pay close attention to the risk assessment approach and business-specific preventative steps necessary to comply fully with the new duty. She says: “Anticipating scenarios [in the newly added section] means taking a risk assessment approach. The draft contains examples of this, and of potential preventative steps arising from the risk assessment. These will be business and potentially area specific. A large employer may have to take a different approach for customer-facing areas of its business for example.”

So what does that mean in practice? In terms of the advice we are giving to our clients it means: (a) assessing where you are now; and (b) understanding what needs to change to ensure compliance with the new duty from 26 October. For many of our clients that equates to conducting an internal audit and risk assessment so let’s consider that. 

Kate Dodd is a D&I specialist who heads up Pinsent Masons’ D&I consultancy Brook Graham which is working with a number of clients on this and earlier she joined me by video-link to discuss it. First question, what’s the difference between the audit and the risk assessment?

Kate Dodd: “So the difference between an audit and a risk assessment is essentially that one is essentially paper based. So the audit is going to be looking at things like policies, procedures, training and the content of that training because the new duty is very specific about what training should include, and also what policies should include, whereas a risk assessment is much more about understanding the culture of the business and also the lived experiences of people within that business. So it's about looking back at issues that have been raised in the past, but also talking to people in order to understand where they're at, things that they've experienced, things that they might be aware of that others have experienced as well.”

Joe Glavina: “Most employers Kate, and all of our clients for sure, will already have policies and procedures and training around preventing sexual harassment in the workplace so what’s new? What’s the trigger for looking at this in a new light?” 

Kate Dodd: “So, the trigger for this is essentially the fact that the new legislation has very specific things that need to be in place and, when I say the new legislation, I'm also talking about the code of practice from the Equality and Human Rights Commission as well, to make sure that the training and that the policies that are in place do comply with that new duty. So, for example, people need to understand that there are three types of harassment and that's something that lots of people's policies and training modules etcetera,  e learning, will not cover. So that, from an audit perspective, is the type of thing that employers need to be looking at.”

Joe Glavina: “One of the things that comes across clearly in the Commission’s guidance is the need for employers to be constantly reviewing what they do. Why that emphasis on reviewing and updating what you’re doing?” 

Kate Dodd: “Again, it’s something that has always existed and we've seen this through many years, where, particularly if clients are seeking to rely on the reasonable steps defence, they'll say, well, you know, we've got these policies in place, we've got training etcetera and we will always then talk to them about well when was the training last updated? When was the individual who is the subject of this complaint, or this this claim, last educated in relation to this particular topic? Often it's then that we realize that things are quite out of date, or that a policy is on the intranet but it has not been accessed, or that there hasn't been any up-to-date training in relation to it. So, this new duty really throws that into even more focus. So, this idea that you will need to be continuously undertaking this risk assessment and looking into things like exit interviews on a very regular basis, looking into formal and informal complaints, grievances etcetera, what they're telling you about your business, as well as doing things like regular focus groups to understand what people are seeing and hearing within your business.”

Joe Glavina: “Another one of the themes that comes out of the Commission’s guidance is the need for employers to conduct a review of the culture within the business and how that needs to be led by senior management. What message are you giving to HR to deliver to the boards of your clients?”

Kate Dodd: “It’s a good question. What we are saying is that this can no longer be owned and led entirely by HR, and this can be a real danger for business in around culture and EDI generally in that people expect HR to do it for them, essentially, and for the business to just say, well, look,  we don't need to think about this, we don't need to worry about it. We're doing a lot of upskilling of boards already at the moment, via Brook Graham. So, we're already going into boardrooms, talking to boards about how to deal with challenging things, challenging issues, that come up in everyday life around equality, diversity, inclusion and so therefore what we're doing at the moment is lots of focus on this new duty so that boards are skilled, they have the language, they have the knowledge, so that if they are called upon to explain what they're doing, and that can often be in a lift or on the way in and out of work or in a meeting, that they've got that knowledge and they've got the language that they need to be able to respond in a way that protects the business and also themselves.”

Joe Glavina: “Finally, Kate, is there anything else, any other message that you want to get across to HR viewers watching this?”
Kate Dodd: “The key message, really, is to get ready. It's very hard. There’s so much change at the moment in HR. There are so many things being proposed by the new government. I would say that the Equality and Human Rights Commission are deadly serious about this and we've assisted a number of clients in their interactions with the Commission and the Commission are extremely committed to seeing change within business and they are extremely rigorous in their approach. So, I would certainly urge businesses to not leave this one on the back burner and not to leave it to chance, basically, because it will be something that the Commission do look to take very seriously and they will want to be making it very clear, where they are taking action involving business, that there will be publication around that. We do see these types of issues in the press a lot which, of course, can be very damaging for a business's reputation.”

The Commission’s consultation on its technical guidance on sexual harassment and harassment at work closed on 6 August and we await the final guidance. As soon as that is published we will let you know.

LINKS
- Link to EHRC consultation: ‘Consultation: technical guidance on sexual harassment and harassment at work’