From 26 October 2024 there will be a new duty on employers to take 'reasonable steps' to prevent sexual harassment. What does this mean for employers in practice?

What is sexual harassment?

Sexual harassment is when someone is subjected to unwanted conduct of a sexual nature, and the conduct has the purpose or effect of violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. It can also be discriminatory harassment to treat an individual less favourably (for example by refusing them a promotion) because they reject or submit to harassment of a sexual nature.

Both men and women can be victims of sexual harassment. A single incident can be enough to constitute harassment; it can also occur even if a harasser does not intend to cause offence, but this is the effect.

What is changing?

The Worker Protection (Amendment of Equality Act 2010) Act 2023 introduces a new duty on employers to take 'reasonable steps' to prevent sexual harassment of their employees in the course of their employment.

At the moment, sexual harassment is prohibited but employers have a defence if they can show that they took 'all reasonable steps' to prevent the harassment. The new law creates a positive legal obligation on employers to take proactive steps to stop harassment from happening in the first place. This shift from reactive to proactive is a significant change.

Employment tribunals will have the power to uplift compensation by up to 25% where an employee succeeds in a claim for sexual harassment and the employer is found to have breached the new duty. The Equality and Human Rights Commission ('EHRC') will also be able to conduct investigations and take enforcement action. There is, therefore, both a reputational and financial risk in failing to comply with the new preventative duty.

What is not changing?

The new mandatory duty to prevent harassment in the workplace only applies to sexual harassment. It does not apply to harassment based on other protected characteristics such as sexual orientation or religion or belief, nor to harassment which is related to sex but is not conduct of a sexual nature.

EHRC guidance

The EHRC has published a draft of updated technical guidance on sexual harassment and harassment at work to reflect the new duty.

There is a new section on the preventative duty. The EHRC guidance states that employers should anticipate scenarios when workers may be subject to sexual harassment in the course of employment and take action to prevent such harassment taking place. If sexual harassment has taken place, the preventative duty means an employer should take action to stop sexual harassment from happening again.

What about harassment by third parties?

In its current form, the legislation does not specifically include a duty on employers to prevent third-party harassment. However, the EHRC guidance states that the preventative duty extends to harassment by third parties, such as customers, clients and service users.

This is something employers need to be aware of and include when assessing their preventative duty. Although a failure to comply with the new duty in relation to a third party would not lead to increased compensation (as employers are not liable for third party harassment - although see below at the section on further changes), failing to take steps to stop it from happening could lead to reputational damage and EHRC enforcement action.

What are 'reasonable steps'?

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;
  • consider which of those steps it would be reasonable for it to take; and
  • implement those reasonable steps.

The EHRC guidance confirms that what is reasonable will vary and will depend on factors such as the employer’s size, the sector it operates in, the working environment and its resources. It could also be relevant to consider the types of third parties workers may have contact with and the likelihood of workers coming into contact with them.

The updated EHRC guidance refers to the existing chapter on 'Taking steps to prevent and respond to harassment'. From this, and existing case law on the 'all reasonable steps' defence, we know that the following may be reasonable steps:

  • promoting an inclusive workplace and a zero-tolerance approach to sexual harassment;
  • identifying whether there are any risks of sexual harassment in the business (either informally or through a more formal risk assessment) and taking proactive steps to address them;
  • implementing an effective up-to-date sexual harassment policy which outlines what constitutes sexual harassment;
  • ensuring that employees are aware of the policy terms and the consequences of breaching them;
  • providing effective regular (not just at induction) staff training on sexual harassment and expected standards of behaviour, and separate line manager training on how to identify sexual harassment and handle complaints;
  • providing a clear supportive channel for reporting sexual harassment, and dealing promptly and effectively with complaints;
  • appointing a harassment 'champion' to oversee complaints, keep records and address risks; and
  • reviewing workplace practices to ensure that anti-harassment measures remain effective.

Further changes?

Labour has indicated that it will go further than the Act (which was introduced by the previous Government) and will 'strengthen' the duty to prevent sexual harassment. This might involve introducing employer liability for sexual harassment by third parties such as customers. There is no detail or timescale as yet for these changes.

Employers should prepare for the changes now.  Practically speaking, the steps needed to comply with the new duty as compared with any revised duty are unlikely to be all that different. 

    More information

    For more information, please contact the Brodies Employment and Immigration team.  Our team is experienced in designing and delivering comprehensive training: get in touch with your usual contact if you would like help with providing effective sexual harassment / equality, inclusion and diversity training.

    Workbox by Brodies, our online HR and employment law site, has practical guidance on steps to prevent sexual harassment and a template sexual harassment policy. To find out more about Workbox by Brodies, or to arrange a short online demo, please contact the Workbox team.

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    Contributor

    Julie Keir

    Practice Development Lawyer