New duty on employers to prevent sexual harassment – are you prepared?

Posted: 29/10/2024

Saturday 26 October saw the introduction of the Worker Protection (Amendment of Equality Act 2010) Act 2023. This marks a significant change to employers’ existing obligations regarding the prevention of sexual harassment in the workplace, yet, as the new law comes into force, it seems that many are unaware of the changes and have not taken any measures to ensure their organisations are compliant from this date.

What is the new law?

The act imposes a new positive duty on employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment.

Previously employers had a ‘statutory defence’ to any harassment claim (not just sexual harassment) if they could show that they had taken all reasonable steps to prevent the harassment concerned.

The new law goes one step further and requires employers to take a proactive, rather than reactive, approach to preventing all sexual harassment in the workplace. This involves employers anticipating scenarios where there is a risk that their employees may be subject to sexual harassment and taking reasonable (though not ‘all reasonable’) preventative steps to address these risks.

Note, however, that the recently-published Employment Rights Bill provides that employers must take ‘all reasonable steps’ (emphasis added) to prevent sexual harassment in the workplace. This change will be brought in at some point in 2025, when the bill is enacted. In practice, this change may not impose any additional requirements on employers, although, as with the statutory defence above, it may make it more difficult to demonstrate compliance – if claimants can point out one reasonable step that could have been taken, but was not, the employer will not have met the duty.

Third party harassment

Although the act does not expressly place a duty on an employer to prevent harassment by third parties (this provision was removed as the bill passed through Parliament), it is nevertheless drafted widely enough to cover acts of harassment by third parties such as customers or service users. Employers will therefore need to anticipate the risk of employees being sexually harassed by third parties as part of their risk assessment to avoid breaching the new duty.

The Employment Rights Bill, when enacted, will also introduce a new right for employees to bring a standalone claim for harassment by third parties in the workplace.

What are reasonable steps?

Of course, the question of what is reasonable is a thorny one, and each case will turn on its own facts.

The Equality and Human Rights Commission (EHRC) has published a revised version of its technical guidance explaining how employers can comply with the new duty.

Stressing that it is not possible to provide an exhaustive list of reasonable steps, the guidance suggests that the factors that may be relevant to whether a step is reasonable include (but are not limited to):

• the size and resources of the employer (with the clear expectation that larger employers will need to do more to discharge their duty);
• the working environment and the sector in which the employer operates;
• the risks present in that workplace;
• the nature of any contact with third parties, for example, type of third party, frequency, environment;
• the likely effect of taking a particular step and whether an alternative step could be more effective;
• the time, cost and potential disruption of taking a particular step, weighed against the benefit it could achieve;
• whether concerns have been raised with an employer that sexual harassment has taken place (it would likely be reasonable for the employer to take steps to investigate and ensure it does not happen again);
• compliance with any relevant regulatory standards (for example, standards set by the Financial Conduct Authority or General Medical Council).

What is clear is that employers who fail to undertake regular targeted risk assessments for each area of their business to identify risk factors, and what reasonable steps can be taken to reduce such risks, are likely to fall at the first hurdle. 

The guidance goes on to offer some practical help on taking steps to prevent harassment, and gives useful examples of how the duty will operate in practice for different employers using scenarios such as a distribution centre, a large construction firm, a hospital and a small theatre company.

Consequences of non-compliance

The new law does not provide a freestanding ground of complaint, but rather grants employment tribunals the power to uplift compensation by up to 25% where an employer is found to have breached this new duty. Importantly, the uplift will not only apply to actionable sexual harassment claims, but also potentially to other discrimination claims that have an historic element of sexual harassment.

Additionally, the EHRC will be able to take enforcement action against organisations that breach the new duty. As such action is public, this could cause significant reputational harm to affected organisations.

Preparing for the new duty

Employers are expected to be compliant with the new law. If not already underway, employers should be carrying out risk assessments now and taking the necessary steps to prevent harassment in the workplace. As a minimum, and in line with the EHRC guidance, it is suggested that employers should consider the following:

• Policies: Put in place an effective anti-harassment policy, and ensure that this is clearly communicated to staff.
• Engagement: Proactively engage with staff and trade unions to find out whether there are any potential issues in a workplace and whether the steps being taken already are working.
• Risk assessment: Carry out a risk assessment identifying the potential issues in a workplace and steps that could be taken to minimise the risk of sexual harassment.
• Reporting: Ensure that all staff are aware of how to report complaints of sexual harassment, and that management are trained on how to deal with such complaints.
• Training: Train all staff on what sexual harassment is, what to do if they experience or witness it, and how to handle any complaints of harassment. For businesses where third-party harassment is more likely, staff should be trained on how to deal with it. Training should not be allowed to become stale, or a tick box exercise, and should be designed to ensure that staff engage properly with the content (through interactive sessions as well as quizzes and surveys).
• Resolving complaints: Ensure that staff complaints are handled appropriately (resolved quickly and confidentially and that steps are taken to protect the complainant and any witnesses from harassment or victimisation).
• Preventing third party harassment: Take steps to prevent sexual harassment by third parties such as customers, clients, patients and consultants, such as putting reporting mechanisms in place and action plans for addressing the risks in high-risk workplaces.
• Monitor and evaluate: Monitor and evaluate the effectiveness of actions taken to prevent sexual harassment and implement new steps to address any change in their risk profile (such as a sexual harassment complaint).  

Failure to do so will leave organisations exposed to claims for sexual harassment which can be deeply damaging, not only to their reputation, but also from a financial perspective, particularly in light of the potential uplift to (already uncapped) compensation.

How we can help

We are offering a free 15-minute telephone call to understand how prepared you are for the new duty and how we might be able to support you. Following this call, there are a number of ways in which we can help, depending on your needs and budget. These could include a round-table discussion, an audit of your policies and procedures, training for your staff, or advice on ongoing monitoring and compliance.

For further information please contact Hester Jewitt, Sophie Whitbread or Paul Mander.

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