New duty on employers to take reasonable steps to prevent sexual harassment is imminent
Employers will be under a new duty to take reasonable steps to prevent sexual harassment of workers in the course of their employment from 26 October 2024. This new duty is contained in the Worker Protection (Amendment of Equality Act 2010) Act 2023.
Crucially, it is a preventative duty which means that employers should anticipate scenarios when their workers may be subject to sexual harassment in the course of their employment and take action to prevent it. If sexual harassment has taken place, employers should take action to stop it happening again. Employers will need to show the specific measures they have put in place to comply with the new duty.
Note that the new duty is limited to preventing sexual harassment and it does not apply to harassment based on other protected characteristics included in the Equality Act 2010.
Back in 2020, the Equality and Human Rights Commission (EHRC) published Technical Guidance on sexual harassment and harassment at work. That Guidance was updated in July 2024 during a short consultation exercise about the new preventative duty. The final version of the Guidance was published by the EHRC on 26 September 2024. It is extensive and includes guidance about how to comply with the preventative duty, as well as many examples of the practical steps employers of different sizes and types can take. The EHRC also published an Employer 8-step guide: Preventing sexual harassment at work which is an extract from the Guidance.
This article explores the implications of the new duty and how employers can prepare for it.
What is the new duty?
The Worker Protection (Amendment of Equality Act 2010) 2023 introduces a new preventative duty for employers to take reasonable steps to prevent sexual harassment in the workplace.
As the Guidance states, it is “a positive and proactive duty designed to transform workplace cultures”.
It is important to note that the new duty is in addition to the existing protections contained in the Equality Act 2010 which protects workers from discrimination, harassment and victimisation. Where a worker commits an act of discrimination or harassment in the course of their employment, their employer is vicariously liable for that act (regardless of whether they knew about it or approved it), unless the employer can show that it took “all reasonable steps” to prevent the discrimination or harassment from occurring. This is the statutory defence under section 109 of the Equality Act 2010. It is a high threshold and it can be difficult for an employer to show that there were no further steps they could reasonably have been expected to take.
The sexual harassment preventative duty is different from the statutory defence as it is a separate positive legal duty requiring employers to take reasonable steps to prevent sexual harassment of their workers.
Before looking at the preventative duty and “reasonable steps” it is helpful to consider what is meant by sexual harassment. It is defined in the Equality Act 2010 as unwanted conduct of a sexual nature which has the purpose or effect of either violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Examples include unwelcome physical contact, sexual jokes or comments, sexual advances, sending sexually explicit emails/texts and displaying sexually graphic images.
Significantly, the new duty holds employers accountable not only for addressing sexual harassment after it occurs but also for proactively mitigating the risk of such conduct occurring.
The scope of protection is to all those “in employment” which has a wide meaning and includes “employees” and “workers”.
The Equality Act 2010 does not apply to third party harassment but the preventative duty does. Accordingly, employers are required to take reasonable steps to prevent sexual harassment not only by their workers but by third parties too. The Guidance gives examples of third parties as clients, customers, service users, members of the public and delegates at a conference. Note however that, a worker cannot bring a standalone claim for third party harassment.
What are the consequences of failing to comply with the new duty?
If an employer fails to comply with the new duty, they face a number of potential consequences.
- 1. Compensation: If a worker brings a successful claim for sexual harassment and compensation has been awarded, the Employment Tribunal must consider if and to what extent the employer has complied with the preventative duty. If it finds that the preventative duty has been breached, it can order a compensation uplift of up to 25%. The amount of the uplift must reflect the extent to which the employer has not complied with the preventative duty. Compensation for sexual harassment can be significant and can include compensation for both past and future loss of earnings, injury to feelings and in some cases, personal injury. It is important to be aware that an individual cannot bring a standalone claim for breach of the preventative duty itself.
- 2. Enforcement action by the EHRC: The EHRC have powers to take enforcement action against the employer and can carry out investigations, issue unlawful act notices and enter into a legally binding agreement with the employer to prevent future unlawful acts.
The new preventative duty is high-profile. In addition to the compensation uplift and possible EHRC enforcement action, employers failing to comply with it are likely to face adverse publicity, reputational damage and a potential impact on employee morale and retention.
Reasonable steps
The Guidance makes it clear that there is no prescribed minimum and what is reasonable will vary from employer to employer. Whether or not an employer has taken reasonable steps is an objective test and will depend on the facts and circumstances in each case.
In deciding whether a step is reasonable, relevant factors include the:
- Employer’s size and resources
- Sector it operates in
- Working environment and risks present
- Types of third parties the worker may have contact with, the frequency and environment
- Likely effect of taking a particular step and whether an alternative step could be more effective
- Time, cost and potential disruption of taking a particular step, weighed against the benefit it could achieve
As mentioned above, the Guidance includes numerous examples of steps taken by different types of employers and these are well worth looking at.
Practical considerations for employers
These could include:
- Educating workers about sexual harassment and what actions amount to such conduct.
It is important to refer to the Equality Act 2010 definition and to give examples of unwanted sexual conduct. Employers should also educate their workers about how to avoid committing such conduct.
- Fostering an inclusive culture in the workplace.
Employers should consider whether there is a prevailing culture or any cultural power dynamics in the workplace. Considering this, employers will be informed of the best preventative measures to take. Implementing a zero-tolerance approach to sexual harassment will instil a respectful and inclusive environment for workers and is important in mitigating the risk of sexual harassment.
Fostering an inclusive culture can be done by running regular training sessions, communicating with staff on any changes or updates to policies, ensuring induction programmes provide effective training and emphasise a zero-tolerance approach to sexual harassment. As the Guidance states, management and senior leaders play a critical role in creating respectful workplaces that are free from harassment. They should “role model respectful behaviour and visibly promote a positive and inclusive workplace culture where harassment is taken seriously and not tolerated.”
- Implementing a clear anti-harassment policy.
It is important to encourage staff to report harassment and sexual harassment and to have an effective complaints procedure in place. The policy could state that the organisation takes a zero-tolerance stance on harassment and sexual harassment and that breach of the policy may lead to disciplinary action. Workers should be reminded about what behaviour amounts to harassment and sexual harassment.
Asking staff for their input on the current policies and preventive framework in the organisation would also be effective to gauge the ideas of workers at different levels of seniority. This may reflect what risks they feel exposed to. Other policies should be reviewed and cross-referred to. For example, breach of the anti-harassment policy should be referred to as examples of misconduct or gross misconduct in the disciplinary policy. Finally, as with all policies, they should be publicised and easily accessible and reviewed regularly to monitor their effectiveness,
- Carrying out risk assessments.
The Guidance advises employers to consider the risks of sexual harassment occurring during employment, consider what steps it can take to mitigate those risks to prevent sexual harassment of their workers, consider which steps are deemed reasonable to take, and implement those steps.
The Guidance refers to various risk factors in the workplace including power imbalances, job insecurity, customer-facing duties and a lack of diversity. Specific risk factors that may increase the risk of sexual harassment include a male-dominated workforce, a workplace culture that permits crude/sexist “banter”, gendered-power imbalances and lone or isolated working.
Significantly, the Guidance states that employers are unlikely to be able to meet the preventative duty to take reasonable steps to prevent sexual harassment if they do not carry out a risk assessment. Further, employers should produce an action plan setting out what preventative steps they will take to address any identified risks and how that will be monitored. The Guidance also says that “the preventative duty is not static” and employers should review the steps they are taking on a regular basis in the light of their risk assessment.
Employers should also consider whether a worker alleged to have committed sexual harassment may pose a wider risk to other workers or third parties.
In such situations, methods such as suspension or a disciplinary process should be undertaken to mitigate any potential risk of sexual harassment posed by the worker.
- Providing training to workers and managers.
The Guidance recommends that training should be provided to workers about the different types of harassment that can occur together with training about victimisation. The training should also cover how to raise complaints with separate training for managers who deal with complaints. The Guidance also recommends that the training is tailored for the nature of the employer and the target audience. Where third party harassment is a risk, the training should also address this.
Records should be kept of who has received training and crucially, it should be refreshed at regular intervals.
- Ensuring there are clear reporting methods of sexual harassment for workers and there is support in place for complainants.
Employers should ensure that all reporting channels for sexual harassment are clear for their workers. The reporting system could be in person or online or an independent telephone-based service where complaints could be raised on either a named or anonymous basis. An effective complaint handling process must be in place to ensure all complaints are investigated appropriately. As mentioned above, a clear anti-harassment policy is crucial to demonstrate a zero-tolerance stance on sexual harassment. Employers should also consider who will be the nominated contact to support the complainant. This may be based on gender or level of seniority. The contacts (internal or external) must be appropriate to support the complainant and they should receive suitable training to provide that support.
The Guidance recommends that employers keep centralised, confidential records of all concerns raised (informal and formal) so that trends can be identified.
- Detecting sexual harassment.
Employers should be proactive and look for warning signs in their workplace such as sickness absence, poor performance, a change in behaviours, resignations or comments made at exit interviews.
Can we expect further change?
The new Government has proposed a range of enhancements to workers’ rights although we are still waiting for the details. It is reported that it may review the preventative duty and introduce an obligation on employers to take “all reasonable steps” to prevent sexual harassment. This was in fact included in the original draft legislation surrounding the new duty but removed during the Parliamentary debates. Prior to the general election, the Labour party also made a commitment that employers should create and maintain workplaces free of harassment including by third parties.
How we can help
The Employment team at Blake Morgan has extensive knowledge and experience in advising organisations on workplace issues, including sexual harassment. If you would like to discuss the new duty and the steps you should be taking to prevent sexual harassment, please contact a member of our Employment team for advice.
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