Getting ready for the new duty to prevent sexual harassment

The new duty on employers to "take reasonable steps" to prevent sexual harassment of employees in the workplace comes into force on 26 October 2024. This new duty is set out in the Worker Protection (Amendment of the Equality Act 2010) Act 2023.

Under existing legislation, employers do currently have a defence to a sexual harassment claim brought by an employee where they can show that they took all reasonable steps to prevent that harassment; however, in light of continuing concerns "that workplace sexual harassment remains widespread, often goes unreported, and is inadequately addressed by employers", this new legislation places a specific proactive standalone duty on an employer to take reasonable steps as a matter of course.

EHRC guidance on complying with the new duty

We are currently awaiting the outcome of the Equality and Human Rights Commission (EHRC) consultation on revising its technical guidance on sexual harassment and harassment at work in light of this new duty. The consultation closed on 6 August 2024 so the outcome is expected shortly.

The draft guidance emphasises that no employer is exempt from the new duty but that "different employers may prevent sexual harassment in different ways". What is reasonable will vary from employer to employer and will depend on factors such as (but not limited to) the employer's: size, sector, working environment and resources.

Whether or not an employer has taken reasonable steps is an objective test and will depend on the facts and circumstances of each situation.

What steps does an employer need to consider?

Given that the appropriate steps will vary from employer to employer, the revised guidance does not identify specific actions; however, it helpfully sets out guidance on what employers should consider when forming their response to addressing this new preventative duty in the workplace, including:

• the risk of sexual harassment occurring in the course of employment;
• what steps an employer could take to reduce those risks and prevent sexual harassment of workers;
• which of those steps it would be reasonable for the employer to take; and
• implementing those reasonable steps.

Prevention of sexual harassment by third parties in scope

The proposed revisions to the technical guidance also confirm that the new preventative duty includes the prevention of sexual harassment by third parties, including by another worker, an agent acting on behalf of the employer or a third party.

An employer must therefore also ensure that it considers the risk of workers coming into contact with third parties in different situations, the risk of sexual harassment occurring in those situations and takes reasonable steps to prevent such harassment as part of its response.  

How is this new duty enforced?

If an employer breaches this preventative duty, the EHRC has the power to take enforcement action against the employer including powers to investigate, issue an unlawful act notice confirming that an employer has breached the Act and requiring the employer to prepare an action plan on how it will remedy any continuing breach and prevent future breaches, entering into a formal legally binding agreement with an employer to prevent future unlawful acts and ultimately asking the court for an injunction to restrain an employer from committing an unlawful act.

These enforcement powers to take action can be used where the EHRC suspects the preventative duty has not been complied with; they are not dependent upon an incident of sexual harassment taking place.

Separate from the EHRC's enforcement powers, where an individual brings a successful Employment Tribunal sexual harassment claim, the tribunal will have the power to increase compensation by up to 25%.

What should employers be doing now?

With the new preventative duty coming into force in October, employers should ensure they are considering the steps they need to be taking. The draft guidance confirms that this new preventative duty is "anticipatory" and "employers should not wait until an incident of sexual harassment has taken place before they take any action". The duty "requires that employers.. anticipate scenarios when its workers may be subject to sexual harassment in the course of employment and take action to prevent such harassment taking place".

For instance, employers should be specifically mindful of work events at which alcohol is served as, in our experience, there is a heightened risk of sexual harassment taking place in such scenarios. Employers may wish to ensure that food is also served at such events and that reminders are sent out to all potential attendees of their responsibility to behave appropriately and with respect to fellow attendees.

As well as the considerations for employers set out above, the existing Code of Practice and guidance on sexual harassment published by EHRC provide a useful tool in considering what measures are appropriate in a particular workplace. Regulated employers should also ensure that they consider separately any specific guidance set out by their regulator.

Examples of measures that could be taken include:

• Communicating the organisation's zero-tolerance approach to sexual harassment and top-down support.
• Reviewing and updating an anti-harassment policy, ensuring that it is communicated to and easily accessible for all workers; it may be appropriate, depending on the organisation, to introduce a separate sexual harassment policy, alongside the more general policy.
• Encouraging the reporting of sexual harassment by providing different methods of doing so; ensure appropriate support is in place for those making a complaint and also those who are subject to a complaint.
• Putting in place anti-harassment training for all staff which is regularly updated and delivered. Training should cover how to raise a complaint and the standards of behaviour expected. Additional training should also be provided for managers on how to handle a complaint relating to other employees and third parties.
• Monitoring the progress of all sexual harassment complaints to ensure they are investigated and resolved; repeat offenders and risk areas should be identified and effective measures put in place to minimise all risks.
• Ensuring policies dealing with harassment are effectively implemented, monitored and reviewed. This could include regular staff surveys to ascertain the extent of any problem or potential risk of sexual harassment, both internally and in relation to third parties with whom employees come into contact in the course of their duties.

Aside from the financial impact of any Employment Tribunal claims, employers must also consider the reputational consequences which will flow from an exercise by the EHRC of its enforcement powers.

Employers should also keep in mind that the new government is proposing further reforms in this area, including making this preventative duty more onerous by extending it to the taking of "all" reasonable steps.

This is an area where we may see further legislative developments from the government and we will keep you updated on this; if you would like to receive our regular Employment Law Coffee Break which looks at the latest legal and practical developments impacting UK employers, please sign up here.