Duty to prevent sexual harassment at work

Tanya_temp — Tue, 22 Oct 2024 07:55:08 +0000

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 “reasonable steps” 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 – 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 – 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 – 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 – 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’s 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:

https://www.equalityhumanrights.com/employer-8-step-guide-preventing-sexual-harassment-work

https://www.equalityhumanrights.com/guidance/sexual-harassment-and-harassment-work-technical-guidance

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’s enforcement regime.

Purchasers of the Alliance’s 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 here.

Settings in the membership of the Early Years Alliance will also have 24/7 access to a free legal advice telephone line.

Legislation update

New holiday pay rules for part-time employees confirmed

shannon.pite — Thu, 01 Sep 2022 19:27:33 +0000

The rules on how holiday pay for part-time workers, including those employed on a term-time only basis, have been confirmed by a new ruling by the Supreme Court, announced back in August 2022.

Since the case of Brazel vs Harpur Trust in 2019, annual leave for any employee or worker, irrespective of the number of weeks they work in a year, is 5.6 weeks. This statutory minimum cannot be pro-rated down based on the assumption that the 5.6 weeks only applies to those who work 52 weeks a year.

The Supreme Court has now dismissed the Harpur Trust’s appeal against this decision, which confirms that part-time workers must receive the same amount of paid annual leave as those working a full year.

This means that employers who have previously calculated holidays using a pro-rated calculation may need to review how they allocate holiday entitlement and pay to ensure they comply with the ruling.

The ruling concludes: “The amount of leave to which a part-time worker under a permanent contract is entitled to is therefore not required to be, and under domestic law must not be, pro-rated to be proportional to that of a full-time worker.”

Workers employed on a casual or zero-hours basis, who are employed for less than 12 months, will not be impacted by this ruling and will still be entitled to holiday based on the number of actual hours they have worked.

Remember – all employees that work term-time only are considered to be part-time workers for the purposes of employment law. This is still the case regardless of whether or not they work ‘full-time’ hours during term-times.

Under the Part Time (Prevention of Less Favourable Treatment) Regulations, part-time employees should be treated the same as full-time employees in regards to the terms and conditions of their employment. As well as equality in holiday pay, this also means that they are entitled to equality in: rates of pay, training, annual leave, rest breaks, contractual benefits, pensions and selection for career advancement or promotion.

Find out more
If you believe that your setting’s holiday calculations may be affected by this ruling, we suggest that you get in touch with Law-Call at your earliest convenience. Their contact details can be found in the Members' Area of our website at portal.eyalliance.org.uk

The Alliance's dedicated payslip team can also manage all your payroll needs at an affordable cost. You can find out more, and request an information pack, here.

Legislation update

early years alliance - Legislation update

Duty to prevent sexual harassment at work

New holiday pay rules for part-time employees confirmed