New duty for employers to prevent sexual harassment of employees

From 26th October 2024, employers across the UK will be under a new legal duty to take reasonable steps to prevent sexual harassment of employees in the course of their employment. It is being introduced by the Worker Protection (Amendment of Equality Act 2010) Act 2023 (“Worker Protection Act”).

Referred to as the preventative duty, it takes a proactive approach by requiring employers to anticipate and mitigate risks of sexual harassment in the workplace. No employers are exempt, and all must act regardless of whether sexual harassment has previously occurred.

Importantly, the protection includes sexual harassment committed against employees by third parties (such as customers, clients, suppliers, contractors and members of the public) as well as harassment by other employees.

Current legal framework         

The Equality Act 2010 (“the Act”) already contains protections against sexual harassment in the workplace. Sexual harassment is defined under the Act as:

Unwanted conduct of a sexual nature which has the purpose or effect of violating the person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

It is a breach of the Act for an employer to sexually harass their employees (and job applicants). Where an employee sexually harasses another employee, the employer can be held vicariously liable unless they can prove they took ‘all reasonable steps’ to prevent the incident. This is a defence and is distinct from the new preventative duty, which imposes a positive legal obligation.

Despite the above existing protections, the Worker Protection Act 2023 explanatory notes state that ‘persistent reports and revelations that have emerged in recent years indicate that [sexual harassment] remains a problem within the workplace.’

Practical guidance  

The Equality and Human Rights Commission (“EHRC”), in its recently updated technical guidance on sexual harassment and harassment at work, outlined the general approach to be taken by employers to comply with their duty:

An employer should:

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

Step 1: Conduct a risk assessment

The Equality and Human Rights Commission (‘EHRC’) has published updated technical guidance on the new duty. In the guidance, it is noted that an employer is unlikely to comply with the duty unless they have carried out a risk assessment.

The employer should identify any risk factors present in the workplace which may increase the likelihood of sexual harassment. Examples of high-risk factors may include:

• a lack of (robust) anti-harassment policies, procedures and/or training;
• previous mishandling of sexual harassment claims;
• a male dominated workforce and/or a gendered power imbalance (e.g. female junior staff and male senior staff);
• employees with more than one protected characteristic (under the Equality Act 2010);
• customer-facing (or other 3^rd party interactive) roles;
• a workplace culture of sexist or otherwise inappropriate ‘banter’ or behaviour;
• alcohol consumption by employees or 3^rd parties such as customers in the course of employment; and
• a casual workforce or a high turnover of staff.

Step 2: Identify and implement ‘reasonable steps’

There is no prescribed list of ‘reasonable steps’ an employer must take. What is reasonable is an objective test which will depend on various factors such as the size, nature and resources of the employer, the risks identified in that workplace to be addressed, and the efficiency of previous measures (for example, if a sexual harassment claim has followed previous anti-harassment measures, then additional or different measures are likely required).

The EHRC guidance also permits employers to weigh the anticipated effectiveness of a step with other factors such as anticipated time, cost and potential disruption from its implementation.

In its guidance, the EHRC provides helpful case examples highlighting reasonable steps in different contexts.

As a starting point, employers will be well-placed by implementing the below steps.

1) Develop a robust anti-sexual harassment policy.

2) Provide regular training to employees.

3) Engage with employees through, for example, regular 1-2-1 meetings, anonymous employee surveys and exit interviews.

4) Keep records and regularly review – and where necessary adapt – anti-sexual harassment measures to ensure continued compliance with the duty.

Consequences of a breach

An employee cannot bring a stand-alone claim for breach of the preventative duty. However, in successful sexual harassment claims, the employment tribunal can increase a compensation award by up to 25% for failure to comply with the duty. There is no cap on sexual harassment compensation awards.

The EHRC also has enforcement powers. An employer can be found in breach even if no sexual harassment incident has occurred. The EHRC can investigate an employer suspected of breaching the duty, issue an unlawful action notice (requiring the employer found in breach to create an action plan to ensure future compliance), enter into a legally binding agreement with an employer to prevent future breaches, and/or seek a court injunction/interdict to prevent an employer from acting unlawfully.

Notwithstanding legal repercussions, sexual harassment can have a significant detrimental impact on employees’ mental and physical health and their personal life.

Further steps

We have outlined some of the key general key considerations but please get in touch with one of our specialist employment lawyers to discuss a bespoke plan for your business in light of this new obligation.

We will also discuss some further practical steps you can take to ensure compliance with this duty at our Employment Matters webinar on 23rd October 2024. Sign up here: https://www.harpermacleod.co.uk/events/