On 26 October 2024, employers will be under a new obligation with regard to preventing sexual harassment in the workplace.
We have updated the standard “Bullying and Harassment” policy and guidance in our Employment Pack to reflect the changes. Those signed up to our Premium Service will receive complimentary updated copies.
The law up until now
Currently, under the Equality Act 2010, where sexual harassment occurs, an employer may be vicariously liable for the actions of its staff where they subject other staff to sexual harassment. The employer has a defence where it has taken “all reasonable steps” to prevent the sexual harassment. That aspect of the law remains unchanged.
The law from 26 October 2024
From 26 October 2024, there will be an additional duty to take “reasonable” steps to prevent sexual harassment in the workplace (a preventative duty). This is a lower threshold than “all reasonable” steps, but it is a positive duty. The “workplace” is a broad term, so it can include social media communications between colleagues, and staff social functions off-site and outside working hours.
That preventative duty also extends beyond the actions of your staff, to include the action of third parties. This means, for example, taking reasonable steps to prevent a church member or a user of a charity’s services, from subjecting your staff to sexual harassment.
Guidance for churches and Christian organisations
We would expect Christian organisations to already be acting in ways to protect staff from sexual harassment (being respectful of each other, being respectful of marriage, avoiding lewd behaviour and language), but it would be wise to reflect on what steps are being taken and what further steps might be appropriate.
The Equality and Human Rights Commission (EHRC) has published recent updated technical guidance and a separate eight-step guide for preventing sexual harassment, which we would recommend those with responsibility in this area make themselves familiar with. The guidance contains examples to help assess what might be a “reasonable” step to take.
Steps to take for meeting your obligations
As a starting point, we recommend that each organisation undertakes a risk assessment. This would identify general risks and any specific risks relevant to you/your sector. The EHRC guidance (which states that employers are unlikely to comply with the preventative duty if they do not undertake a risk assessment) sets out a number of risk factors to be considered. That includes “gender power imbalances”, so for example it would be wise for churches with exclusively male leadership to recognise that as a particular risk within their assessment.
Following on from that assessment, steps should be taken to address and reduce the risks. Such steps are likely to include:
- Training staff, so that they understand: what sexual harassment is (including examples specific to your organisation/sector); your stance in relation to sexual harassment; how they should raise concerns; and reassurance that you will engage with those concerns
- Having policies and wider communications that help communicate and support that understanding, including for third parties who interact with your staff, and encourage staff to raise concerns
- Having appropriate processes (and people) in place for addressing concerns of sexual harassment
- Taking appropriate action if an issue arises
- Reviewing the effectiveness of these steps
Whilst this preventative duty may be extended in due course, at the moment it applies only to sexual harassment, that is, conduct of a sexual nature. This could include, for example, unwelcome touching, hugging or kissing. It does not cover harassment generally related to sex (i.e. whether someone is male or female) or any other characteristic.
This is understandably an area in which Christian employers will want to both meet their legal obligations and protect the people under their care.