Navigating the new Section 40A law on sexual harassment

Effective from 26^th October 2024, Section 40A of the Equality Act 2010 strengthens workplace sexual harassment protections by introducing a proactive duty for employers. While Section 26(2) defines sexual harassment as unwanted conduct of a sexual nature, Section 40A compliance requires employers to proactively anticipate and prevent such incidents before they arise. This proactive duty means that employers can no longer simply respond to complaints but must implement measures to protect workers from potential harassment risks, even from third parties such as visitors and contractors.

To comply, employers must take “reasonable steps” tailored to their workplace environment to prevent harassment. This includes implementing a clear and specific sexual harassment policy that is not embedded within broader policies, ensuring it receives focused attention and effective communication. Employers must conduct proactive risk assessments and establish accessible reporting channels. If harassment occurs despite these measures, employers are expected to take further action to prevent any recurrence.

Failure to meet this duty could result in independent enforcement by the Equality and Human Rights Commission (EHRC), even when a tribunal decision favours the employer. If an employee’s claim is successful, tribunal compensation can be increased by up to 25%, highlighting the critical need for employers to uphold strong anti-sexual harassment practices.

What is sexual harassment?

Sexual harassment involves any unwanted conduct of a sexual nature that creates an environment that violates a person’s dignity or makes them feel intimidated, hostile, degraded, humiliated, or offended. It can take various forms, including verbal, non-verbal, and physical acts. Under Section 40A, employers must ensure their employees are protected from these behaviours within their employment settings.

Employers’ new duty: What does Section 40A entail?

To achieve Section 40A compliance, employers must take reasonable steps to prevent sexual harassment in the workplace. The law stipulates:

Employers are required to anticipate scenarios and take action to prevent sexual harassment by employees, agents, or third parties like contractors and visitors.
This proactive duty applies specifically to sexual harassment and not to other forms of harassment.
Employers failing to comply could face serious consequences, including increased compensation (up to 25%) in tribunal cases and potential enforcement actions from the EHRC.

Key requirements for compliance: What are “reasonable steps”?

Meeting Section 40A’s requirements demands more than simple awareness-raising. A notification via email or general communications is insufficient. Employers must take an objective approach, when assessing the steps they need to take. The “reasonable steps” that should be considered include:

Educating staff about what constitutes sexual harassment, how to respond to incidents, and the steps the company will take in response.
Assessing and, if necessary, modifying the workplace culture to support a harassment-free environment.
Developing a clear policy specifically tailored to address sexual harassment and ensuring it is effectively communicated to all employees.
Providing targeted training for managers to handle allegations appropriately and ensure they are equipped to manage cases effectively.
Ensuring accessible and confidential reporting channels are available for employees to report incidents.
Conducting a targeted risk assessment specifically for sexual harassment, evaluating potential risks and taking preventative action.
Consulting with employees and unions on the risk assessment and incorporating their feedback.
Clearly communicating the policies to all employees and third parties.
Regularly consulting with staff and unions to assess policy effectiveness, address any concerns, and continuously evaluate and refine compliance practices to ensure they remain proactive, impactful and effective.

How visitor management can help you manage the change

One of the biggest challenges facing employers under Section 40A is how to extend these preventative measures to all areas of their operations, including for visitors, contractors, and hybrid or remote staff. Visitor management systems can play a pivotal role in addressing this.

Pre-register third parties: Inform visitors and contractors about the zero-tolerance policy on sexual harassment before they even enter the workplace. Policies can be shared digitally, with digital signatures required to confirm agreement before arrival, ensuring policy awareness and compliance.
Digital documentation: Physical sign-in sheets no longer provide sufficient evidence that an employer has taken reasonable steps to prevent harassment. A digital visitor management system ensures all paperwork is stored and signed digitally, providing a clear audit trail should a claim arise.
Audit trails: Having an electronic system to record when visitors or contractors are on-site ensures employers can demonstrate proactive measures in case of any incidents. This is critical if an employment tribunal or the EHRC is reviewing the employer’s steps in preventing sexual harassment.
Remote staff engagement: For hybrid or remote staff, digital systems can ensure policies are still clearly communicated, and staff can electronically sign that they have understood and adhere to these policies, regardless of their location.
Ongoing risk assessment: A visitor management system allows employers to continually assess and monitor third-party interactions, ensuring that their policies remain effective in preventing sexual harassment across all employee and non-employee interactions.

The importance of Section 40A compliance

Failure to uphold Section 40A compliance could lead to severe financial and reputational damage for businesses. Employment tribunals now have the authority to increase compensation for sexual harassment cases by up to 25%, and the EHRC could take enforcement action even if an employer wins a tribunal case. This reinforces the importance of maintaining strong anti-sexual harassment practices.

Employers can meet Section 40A requirements by using a visitor management system as a proactive compliance tool. Informing visitors and contractors of the zero-tolerance sexual harassment policy before they enter the workplace, digitally storing their signed acknowledgments, and maintaining an audit trail demonstrate proactive measures to tribunals or the EHRC, if a claim should arise.

For guidance on applying Section 40A, the EHRC website offers practical examples showing how various organisations - from large businesses with extensive resources to smaller business with limited resources - can take reasonable steps to meet compliance. These scenarios cover a wide range of industries and illustrate effective strategies to proactively address Section 40A compliance.

Ensuring a zero-tolerance approach to sexual harassment in the workplace is now not just a moral obligation but a legal one. Businesses that implement these changes effectively will create safer, more respectful workplaces and avoid potential liabilities.