This article was written by Paul Donaldson, director of people and technology at the Early Years Alliance.
The Equality Act 2010 protects workers against sexual harassment in the workplace. Following government concerns that this protection was inadequate, the Worker Protection (Amendment of Equality Act 2010) Act 2023, which amends the 2010 Act was introduced.
From 26 October 2024, employers will be under a new duty to take reasonable steps to protect their staff from sexual harassment during their employment and take preventative action against it, or face action from the Equality and Human Rights Commission (EHRC). Reasonable steps will depend on various factors such as the size and resources of your organisation, the risks within the sector, the risks present in your workplace, the nature of contact with third parties and an assessment of the steps being considered. Compliance will also require settings to take steps to prevent sexual harassment by third parties. Third parties include agency workers, customers, contractors and free-lancers.
The reasonable steps taken, the impact and effect will also need to be regularly reviewed.
Under section 26(2) of the 2010 Act, sexual harassment occurs when a person is subjected to unwanted conduct of a sexual nature that has the purpose or effect of either violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. It also happens if they are treated less favourably because they submitted to, or rejected, that unwanted conduct.
The EHRC has published its updated technical guidance which includes an eight-step guide for employers under the following headings.
Step 1 - Developing an effective anti-harassment policy
Settings must put in place a sexual harassment policy and clear procedure (or update its dignity at work or anti-harassment policy) so that staff know how to report concerns and what steps will be taken. Include references to Sexual Harassment in your Whistleblowing Policy.
Step 2 - Engaging with staff
Creating and maintaining a culture of transparency where workers understand how and feel able to raise concerns knowing they will be taken seriously. Conducting regular one to one meetings, surveys and exit interviews where you ask about sexual harassment will help your setting to develop the right culture.
If you have staff representatives, engage them in the steps you are taking to comply with this preventative duty.
It is also important that you communicate to all staff a zero-tolerance approach to sexual harassment.
Step 3 - Assess and take steps to reduce risk in your workplace
The first step to understanding the 鈥渞easonable steps鈥 required is to carry out a risk assessment to identify risks and the control measures required to minimise the risks. A risk assessment will also be one of the necessary measures to be able to demonstrate that the setting is meeting the preventative element of its duty. A risk assessment should consider working practices, including policies and procedures, the working environment and any factors that impact on risks in this area. Examples include socialising outside of work, having a workplace culture that permits inappropriate sexual banter or behaviour, and gender imbalances.
Step 4 鈥 Reporting
Ensure that all staff are aware of how to report complaints of sexual harassment.
Records of all harassment complaints both informal and formal should be kept as part of a central record to inform policies, procedures, training and whether further reasonable steps are required to prevent sexual harassment.
Step 5 鈥 Training
Train all staff on sexual harassment and what is considered unacceptable behaviour in the workplace, and what to do if they experience or witness it. The training should be effective and not a tick box exercise. Staff must be required to undertake the training periodically.
Managers should also be training to deal with both informal and formal complaints effectively.
Step 6 鈥 What to do when a harassment complaint is made
Settings are expected to take all concerns raised about harassment seriously and act promptly in taking appropriate action. Where necessary this will also include steps to protect the person making the complaint and any witnesses. It is also important to supporting any staff affected by sexual harassment in the workplace.
Concerns about sexual harassment at work should never be ignored. Later remedial action will not be enough if an original complaint has been ignored.
Step 7 鈥 Dealing with harassment by third parties
The setting will need to take steps to prevent sexual harassment by third parties. Steps could include:
- including an express term in all contracts with third parties notifying them of the setting鈥檚 policy on harassment and requiring them to adhere to it
- display zero tolerance posters in your setting
- communicating your policy to third parties including for example employment agencies
Encouraging employees to report harassment by third parties, supporting employees who report harassment and taking appropriate action in respect of every complaint of harassment by a third party is also an important element of the preventative duty.
Step 8 - Monitor and evaluate your actions
Monitor and evaluate the effectiveness of your actions to prevent sexual harassment in the workplace and implement new reasonable steps if necessary.
For details of the EHRC guidance click here:
As well as the risk of tribunal claims and awards against an employer, settings that fail to comply with this duty will also be subject to the EHRC鈥檚 enforcement regime.
Purchasers of the Alliance鈥檚 People Management in the Early Years publication will have access to the following:
- Sexual harassment policy template
- Sexual harassment risk assessment template
- Sample questions relating to one-to-one meetings, staff survey and exit interview.
You can register your interest in the publication .
Settings in the membership of the Early Years Alliance will also have 24/7 access to a free legal advice telephone line.