The new duty to prevent sexual harassment

On 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 came into force, creating a new proactive duty on employers to take reasonable steps to prevent sexual harassment from occurring in the workplace. Employers who fail to do so, will face a potential uplift to compensation of up to 25%.

The Act also provides for enforcement of the obligation via the Equality and Human Rights Commission (“EHRC”). This includes powers to investigate, issue enforcement notices, enter binding agreements with employers and seek court injunctions.

The preventative duty applies only to sexual harassment. It does not cover harassment related to a protected characteristic, nor does it apply to less favourable treatment for rejecting or submitting to unwanted conduct.

What does this mean for employers?

Under the Equality Act 2010, employers can already be vicariously liable for the unlawful actions of their employee, regardless of whether the employee’s acts were done with the employer’s knowledge or approval. There is a defence available to an employer if it can show that it took all reasonable steps to prevent the employee from doing the discriminatory act, but it is a high hurdle to clear.

The ‘all reasonable steps’ defence remains, but the Act has now introduced a new, positive obligation, which will require employers to put reasonable steps in place proactively to prevent sexual harassment of employees from arising in the course of their employment.

Under the new Act, if an employee succeeds in a claim for harassment and sexual harassment is involved to any extent, an employment tribunal will be required to consider whether the employer breached its duty to take reasonable steps to prevent sexual harassment and, if so, whether to uplift any award of compensation by up to 25%.

What are classed as ‘reasonable steps’?

Technical guidance published by the EHRC makes it clear that what is reasonable will vary from employer to employer, and will depend on factors such as the employer’s size, the sector it operates in, the working environment and its resources. There are no particular criteria or minimum standards an employer must meet. Different employers may prevent sexual harassment in different ways, but no employer is exempt from the sexual harassment preventative duty.

What can employers do?

Employers should ensure that they document any steps that they take to prevent sexual harassment. If they are ever called upon to demonstrate the action they have taken, either by the Employment Tribunal or the EHRC, they will be in a much better position to do this if they can point to a carefully thought-out plan and programme which is adhered to and regularly reviewed.

Here are some specific areas that employers should consider:

Policies and procedures

Employers should look at existing harassment, bullying, equal opportunity and other relevant polices and update them to include the new obligation. Employers may also wish to introduce a specific policy on bullying and harassment. This policy should clearly state that it applies to all staff on and off the premises and that bullying or harassment of staff by visitors will not be tolerated.

Risk assessments

Risk assessments should be carried out to identify whether there are individuals or particular groups who are at more risk of harassment than others, or perhaps of being guilty of harassing other staff. Steps should be taken to reduce any risks identified. For example, employees working alone and/or at night may be more vulnerable, particularly if they come into contact with a lot of third parties. The revised technical guidance now states that employers are unlikely to comply with their preventative duty unless they carry out a risk assessment.

Consultation

It would be sensible to consult with staff and unions about the possible risks and the steps the employer could take to minimise those risks. If no risks are raised, or all steps suggested are taken on board, then this will help the employer show that it took reasonable steps, should the need arise. However, employers should do this sensitively and think carefully about the best way to go about it (e.g. via an anonymous survey) as it could inadvertently trigger past trauma amongst staff who have previously suffered sexual harassment.

Inclusive culture

Creating and maintaining respect and inclusion within the workplace, with a clear zero-tolerance approach to harassment, is crucial to combatting the risk of unacceptable conduct. This is obviously not something that can be done overnight, and it requires buy-in from the very top of an organisation, but it is something all employers should be striving towards.

Staff training

Effective training is crucial to preventing harassment in the workplace. All staff should be trained on rights related to sexual harassment, including what behaviour will not be tolerated, as well as the relevant policies and procedures. Managers should be trained on how to deal with complaints when they arise. Training should be repeated and updated on a regular basis; one-off training on induction is unlikely to be sufficient.

Clear reporting processes

There should be a clear reporting process for claims of harassment and discrimination and all staff should be made aware of this. Complaints from employees must be investigated promptly, and fair procedures must be maintained throughout to ensure that staff trust that their complaint will be listened to and dealt with empathetically. Any lessons learned should be implemented promptly.

Dealing with harassment by third parties

The EHRC guidance makes it clear that the preventative duty covers sexual harassment by third parties, such as clients and customers, and so employers should also take steps to prevent this type of harassment, for example by displaying prominent signs that harassment will not be tolerated and putting reporting mechanisms in place.

Monitor progress

Ensure that the measures put in place are monitored and evaluated, on a regular basis.

Whilst the change in the law will put additional obligations on an employer, if the steps above are followed, employers will be in good stead to stop sexual harassment before it starts and, in the event that it does occur, show that they took reasonable steps to prevent it.

We can support you with implementing any changes

If you would like any further advice or guidance, including support with amending policies and/or staff training, please do not hesitate to contact a member of the employment team.