The new duty on employers to prevent sexual harassment in the workplace

On 26 October 2024 the new duty to prevent sexual harassment comes into force. In this update we provide details of the new duty, and the steps employers can take now to prepare.

How has the law changed?

Under the current law, sexual harassment in the workplace is prohibited under the Equality Act 2010. Employers can be held vicariously liable for harassment by their employees even if unaware of the conduct, provided it occurs during employment. However, employers have a defence to claims if they can show that they took 'all reasonable steps' to prevent the harassment.

The Worker Protection (Amendment of Equality Act 2010) Act 2023 ('the new Act') will go a step further by imposing a mandatory legal obligation on employers to be proactive in taking reasonable steps to prevent sexual harassment from occurring in the first place.

What are the risks associated with non-compliance?

It is important to note that this new duty will not give employees an independent cause of action to pursue in an employment tribunal. Instead, allegations of a breach of this duty will only be considered by a tribunal where an employee’s claim for sexual harassment has been upheld.

Financial risks

If an employee is successful in their sexual harassment claim at an employment tribunal and the employer is found to have neglected their duty to take reasonable steps to prevent sexual harassment, the tribunal can increase the compensation awarded to the employee by up to 25%. As there is no cap on the compensation that can be awarded for discriminatory harassment, this could be a significant uplift!

Reputational Risks

The new Act gives the Equality and Human Rights Commission ('EHRC') the power to enforce the new duty, including the power to investigate potential breaches and to require employers to enter into legally binding agreements to take certain steps to address issues of discrimination or harassment.

Although an employer's failure to comply with the duty in relation to third parties (such as customers) is not currently covered by the law, the EHRC's powers of enforcement will still apply, thus any failure to take preventative steps in relation to third parties could lead to investigations by the EHRC and reputational damage.

What steps can employers be taking now to prepare for this new duty?

There is currently no clear-cut guidance on what may constitute 'reasonable steps', although the steps that are considered 'reasonable' will vary depending on factors such as the employer's size, sector and resources.

Employers may wish to take the following steps now to prepare for this duty:

• Undertake a risk assessment

Employers need to understand where the risks of sexual harassment are in their business and what they can do to mitigate them. This can be done by keeping a record of complaints, reviewing absences, exit interviews and undertaking focus groups and employee surveys. The level of risk will vary depending on the employer's business and the employee's role. For example, work travel or being in a customer facing role may increase the risk of sexual harassment.

• Review policies, contracts and procedures 

Review what policies are in place and update them to define sexual harassment, give examples of what it is and what employees can do to help prevent it from occurring. Many employers are introducing Sexual Harassment policies to enhance the focus on prevention.

• Provide training

Training needs to be more than a one-off session or tick-box exercise, particularly for managers. Arranging refresher sessions on a regular basis is important, especially in businesses where staff turnover is high. Keeping track of who has completed the training and when will ensure that all staff have participated. Employers should also think about how the training offered may vary by job role, for example senior personnel should not only be trained on how to spot sexual harassment, but also on what to do if they receive a report of sexual harassment.

• Establish reporting channels 

Employers should create a culture where everyone feels safe to report sexual harassment. Employee resources should be clearly signposted, and employees should feel they are supported and taken seriously throughout. All complaints should be handled in accordance with a complaints-handling process, be investigated thoroughly and dealt with promptly and fairly.

• Continuous Monitoring

Monitoring responses to staff surveys, reports of sexual harassment and training programmes will allow employers to assess the risks of sexual harassment in their business and whether the measures taken are enough to ensure compliance with the new duty.

CONTACT US

If you are an employer, or employee who needs guidance, we are here to help.  Please do not hesitate to contact our Employment Law Team on 01522 814638, or make an enquiry here.