The “new” duty to prevent sexual harassment: insights from Down Under

This article has been written by Jennifer Williams, an Australian qualified lawyer, who has recently joined the Employment Team at Farrer & Co. 

Many businesses will have already marked the date, 26 October 2024, for when the new positive duty to prevent sexual harassment in the workplace comes into force. You may have already seen the range of articles and discussions we have published on this topic (including our blogs on A new law on preventing sexual harassment in the workplace and Preventing sexual harassment at work: EHRC consults on new guidance).

In the wake of the “Me Too” movement, there was an increased focus across the world on sexual harassment and discrimination in the workplace and other jurisdictions have already introduced similar preventative duties. For example, Australia introduced a “positive duty” to prevent sexual harassment in 2022.

We thought it helpful to share some insights for businesses from Australia, two years on, to help you prepare for this new positive duty.

Not an entirely new duty

The first takeaway: this is not an entirely new duty.

Sexual harassment in the workplace is already prohibited and employers should be ready to demonstrate they have taken all reasonable steps to prevent an individual employee from engaging in sexual harassment. Establishing this can provide employers with a defence to a discrimination claim under the Equality Act 2010.

However, employers also have a duty of care to their employees and workers, both in contract and under work health and safety laws. The Health and Safety Act Work etc Act 1974 imposes a duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare of their employees at work. Australia has a mirror duty, where health and safety regulators are taking an increased interest in how employers are managing psychosocial risks in the workplace, especially sexual harassment.

While there has been no indication that the UK safety regulator will take a similar approach in focusing on sexual harassment with the introduction of the new positive duty, the link between sexual harassment and health and safety is clear. In December 2023, ACAS convened a group to better understand the approaches taken to sexual harassment in the workplace and what lessons we can take away. Notably, a shared major challenge included workplaces which were not psychologically safe.

The approach in Australia, and arguably increasingly in the UK, is that the health and safety duty of care is a similar, if not the same, duty to the positive duty on employers to prevent sexual harassment in the workplace. In other words, organisations in Australia treat sexual harassment as a health and safety risk, and so approach it in the same way as they would any other health and safety matter. In practice, this can mean the positive duty is not “entirely new” and it is likely employers are (or should be) better prepared for this than they may originally think.

So, what is different?

1. This is a proactive, not a reactive duty, similar to work health and safety principles.
2. The EHRC will also have the ability to investigate and take enforcement action against an employer, without an individual issue being raised or identified.

What this means is that it is not enough for businesses to wait for an issue to arise. Instead, they should start to take a risk management approach to the matter.

Adopting a risk management approach

This leads us to the second takeaway: utilise existing frameworks and promote intersectionality between employment and safety in the workplace.

An important step (and supported by the EHRC’s Guide “Sexual harassment and harassment at work”) in being proactive to reduce and eliminate the risk of sexual harassment in the workplace is adopting a risk management approach. We advise the following:

• Conduct risk assessments to identify areas of vulnerability,
• Take steps to remove or mitigate risks,
• Train staff on how to handle concerns,
• Record actions,
• Monitor and report outcomes, and
• Implement further actions if needed.

Most businesses should ideally have health and safety teams/experts established with experience in risk management and conducting risk assessments. Sharing the resources and knowledge between a health and safety team with an HR team will put businesses leaps and bounds ahead in compliance with the new positive duty (if they are not doing so already).

We expect to see a rise in the need for greater collaboration between HR and health and safety teams not only for the risk management framework, but also in governance and reporting matters to ensure management is receiving the right information on how businesses are complying with the new positive duty.

Please reach out if you’d like to discuss the new positive duty, and your approach to preventing workplace sexual harassment more broadly.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, August 2024