New employer duty to prevent sexual harassment (applies in GB only )

From 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 will place a new positive duty on employers in Great Britain to take reasonable steps to prevent sexual harassment at work. Below, we explore key points and steps employers should be taking now to prepare.

Key points to note about the new duty

1. No employer is exempt from the new duty, but what counts as ‘reasonable steps’ will vary

Employers will need to take ‘reasonable steps’ to prevent sexual harassment of their workers in the course of employment. (As a reminder, sexual harassment is unwanted conduct of a sexual nature which has the purpose or effect of violating a worker’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that worker.)

While the concept of an employer taking ‘reasonable steps’ to prevent sexual harassment isn’t entirely new –– the introduction of a positive duty on all employers to take reasonable steps to prevent sexual harassment arising at work in the first place is brand new.

Crucially, no employer is exempt from this new preventative duty.  However, different employers may prevent sexual harassment in different ways.  The degree to which steps an employer has taken are considered ‘reasonable’ will vary from employer to employer and will depend on factors such as (but not limited to) 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.

2. The preventative duty is anticipatory, so risk assessments will be key

The new duty is both ‘preventative’ and ‘anticipatory’, meaning employers should not wait until an incident of sexual harassment has arisen before they take any action.

Rather, the new duty requires employers to anticipate scenarios in which their workers may be subject to sexual harassment in the course of employment and take pre-emptive action to prevent such harassment taking place. Further, where incidents of sexual harassment have already occurred, the employer must take steps to prevent similar incidents from reoccurring in the future.  After all, if something has happened once in your organisation, even if six months ago, there is a good chance it could happen again.

Risk assessments should form a key part of an employer’s compliance with this new duty. With this in mind, we would encourage all employers to update their risk assessment processes to take account of the risks of sexual harassment moving forward. Consider, for example: the composition of your workforce (do you have gender imbalances in any of your teams?); do staff (or third parties) have access to alcohol at work; have exit interviews revealed information which may be useful to your assessment of the likelihood of sexual harassment arising; is there a clear process for staff to raise sexual harassment concerns; and how have any previous allegations of sexual harassment been handled? Make sure you carefully document your assessment of the risks in writing and keep this under regular review. Strive towards creating an organisational culture that proactively prevents sexual harassment, rather than simply reacting when incidents occur.

3. Harassment by third parties counts (and ‘third parties’ is broad)

In addition to the prevention of worker on worker sexual harassment, the preventative duty includes a duty to prevent sexual harassment by third parties.  The list of who can count as a third party is also broad; this could include customers, clients, service users, patients, friends and family of colleagues, delegates at a conference and/or members of the public.

This means that, as an employer, you should be considering the risk of your workers coming into contact with third parties and the likelihood of sexual harassment occurring in those situations, and then taking reasonable steps to prevent such harassment from occurring in those scenarios.

4. Wide ranging consequences for employers who do not comply

However, the new preventative duty on employers will be enforceable by the Equality and Human Rights Commission (EHRC) – even if the EHRC only suspects that the duty has not been complied with – and employment tribunals will have the power to uplift the compensation awarded in sexual harassment cases by up to 25% if they find that an employer has failed to comply.  Failure to prevent sexual harassment at work could therefore result in substantial costs to an organisation, in terms of financial expenditure, the amount of management time required to defend any legal claims, and of course reputational damage.

5. Practical steps

While there is no comprehensive list of steps an employer should take to comply with the new preventative duty – as each organisation needs a bespoke approach focusing on its key risk areas and the duty to prevent sexual harassment is both anticipatory and ongoing – we have outlined below some recommended action points for employers:

• Ensure your HR policies and procedures are robust, up-to-date and have been clearly communicated. It is vital that your policies (e.g. equal opportunities and anti-harassment and bullying) make clear that your organisation takes a zero-tolerance approach to all forms of harassment, including sexual harassment. Make sure these policies have been clearly communicated to your workforce and that they are implemented consistently in practice. If your organisation recognises a union, actively seek out their comments by asking where they think the key risks lie and then show that you are taking active steps to tackle their concerns. Policies are of little use if they are just kept in a drawer gathering dust, so keep them under regular review.
• Work on creating the right organisational culture. Staff need to feel able to raise concerns and be confident that any allegations will be handled fairly, regardless of the status of the alleged perpetrator. Part of this is about making sure that your senior leadership team are fully engaged with the preventative steps you are taking and that they openly support your zero-tolerance approach. Senior staff need to ‘walk the talk’.
• Include sexual harassment in your risk assessments. Remember that the new employer duty is anticipatory, so you should look for where areas of risk lie and take active steps to minimise the chances of those risks arising.
• Provide mandatory awareness training for all staff. Thorough training on what constitutes sexual harassment and how employees should report inappropriate behaviour that they have experienced, or witnessed, can be a key method of prevention and help to ensure employees are aware that your organisation takes the issue seriously.
• Provide specific training for managers to help them spot when someone may be experiencing harassment and know how to investigate allegations properly. Managers also need training on how to take disciplinary action as appropriate.
• Refresh your training regularly to ensure that it does not go ‘stale’.  Establish a clear process for reviewing the effectiveness of your updated policies and training, with a timetable for refresher training. Remember that it will not be enough for employers to take a few steps in readiness for October 2024 and then sit back. Rather, the new duty requires employers to keep issues relating to sexual harassment ‘front of mind’, with ongoing monitoring and review.
• Take active steps to minimise the risk of sexual harassment by third parties.
• Conduct regular employee surveys. These can be invaluable for helping employers understand where issues within their organisation could lie. If you know where the key risks like, you will be better placed to address them.
• Establish workplace champions who can provide advice and support to individuals who experience or witness sexual harassment.