New training programmes needed for UK’s new sexual harassment duty, warns lawyer

As you may have seen in the news, the Equality and Human Rights Commission has launched a consultation on proposed changes to its technical guidance on sexual harassment and harassment at work. The changes take into account the new duty on employers to take reasonable steps to prevent sexual harassment of their workers set out in the Worker Protection (Amendment of Equality Act 2010) Act 2023. The new duty will be coming into force on 26 October.

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 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 Commission will have the power to take enforcement action against the employer and employment tribunals will have the power to increase compensation for sexual harassment by up to 25%. Potentially more serious, however, in our view, is the risk of internal and external reputational damage as a result of being shown to have a culture where harassment exists, and/or is not addressed.

A key requirement under the new duty will undoubtedly be for employers to provide training on the new duty. Paragraphs 5.21 to 5.23 of the Commission’s guidance specifically covers training and spells out how training programmes will need to be tailored to the particular employer’s business, how records will need to be kept of who has received the training, and the importance of making sure that there are people in the business who are trained in providing support to individuals who have experienced harassment, so-called ‘harassment champions’. 

Of course, the responsibility for rolling out the necessary training programmes will lie with HR. So, what can HR professionals be expected to do? Helpfully, a similar law is already in force in Australia so we can get a good idea by looking at their experience. In 2022 the Australian government introduced a new positive duty on employers to prevent sexual harassment through amendments to its Sex Discrimination Act 1984. As with the UK, the duty requires employers to shift their focus to actively preventing workplace sexual harassment and discrimination, rather than responding only after a complaint is made. 

Most businesses in the UK, especially large businesses, will already have anti-harassment training programmes in place so will those existing courses suffice when the new duty comes in? HR professionals in Australia faced the same question in 2022 so it’s worth looking at how they handled it. Emma Lutwyche is an employment lawyer based in our Sydney office and earlier she joined me by video-link to discuss it. I asked Emma if the new positive duty, when it came into force in Australia in 2022, meant new training programmes were needed? 

Emma Lutwyche: “Yes, absolutely. One of the things that the report that led to our positive duty being implemented called out was that the training that was happening in employers in Australia wasn't sufficient. There was a lot of online training, a lot of tick-box training, and it just wasn't good enough and it wasn't doing the job of preventing sexual harassment occurring, it wasn't teaching people what it was, it wasn't teaching people what to not do, and it wasn't preventing sexual harassment. So, since the positive duty was announced, but since before it came into law, we've been spending a lot of time with our clients conducting leadership training, conducting people manager training, conducting general employee training about what the laws say, what you can and can't do, and how to prevent sexual harassment in the workplace and a huge part of that is also bystander obligations and how everybody in the workplace has an obligation to prevent sexual harassment occurring. So rolling out that training has been a huge part of how we've been assisting our clients to comply with the positive duty for the last two years now.”

Joe Glavina: “Some when it comes to training Emma, do you work closely with HR on this, and senior people in the business?”

Emma Lutwyche: “Yes, we are absolutely working hand in hand with them and they are leading this for their businesses. Leaders, people leaders, and HR are leading this together. It's not just an HR issue, it's a senior leadership issue as well and so what we're doing with training is we are training senior leaders and then we're assisting HR to continue to ensure that that training is being rolled out on a regular basis, that everyone that starts has the tools that they need to ensure that they're complying with the positive duty. So, really, what we're doing is we're giving HR, and leaders, the tools to prevent sexual harassment in the workplace.”
Joe Glavina: “The last interview I did on this, Emma, was with your colleague Aaron and he said just bringing the leadership along for the ride isn't the way to go. It should be led by the leadership.”

Emma Lutwyche: “Yes, look, it is a huge part of it and respectful culture has to come from the top. Leaders have to know what the laws are and what they need to prevent and they have to be active in doing so. So, if leaders aren't calling each other out, and if leaders aren't taking responsibility for their own actions, they can't expect everyone else to and so both from a leadership perspective and a personal perspective it's really important that it come from the top.”

Here in the UK the Equality and Human Rights Commission’s consultation still has a few more days to run so you still have time if you would like to respond – until Tuesday 6 August. The consultation paper includes a link which allows you to submit your views to the Commission online. We’ve included a link to that in the transcript of this programme for you.  

LINKS
- Link to EHRC guidance