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From 26 October 2024, there is a new employer duty to prevent sexual harassment. Employers will be under a mandatory duty to take reasonable steps to prevent the sexual harassment of their staff at work.

In the wake of the #MeToo movement, the Government committed to shoring up protections for employees by imposing a positive duty on employers to prevent sexual harassment at work. As of 26 October 2024, this duty is contained in the Worker Protection (Amendment of Equality Act 2010) Act 2023 (The Act). The Act introduces a new duty for employers to take reasonable steps to prevent sexual harassment of employees. It can increase the potential compensation for victims by a further up to 25%.

This article explains the new employer duty to prevent sexual harassment, how to prepare for it, how to protect your employees from sexual harassment, to help them feel comfortable reporting it, and as a result how to put the business in the best position to defend a claim.

The Act reinforces and expands upon the protection in the Equality Act 2010 which requires employers to demonstrate the concrete steps that they have taken to prevent sexual harassment in the workplace. It means proactively working to create a safe working environment and is a change in emphasis from dealing with incidents after they occur to actively preventing them in the first place.

Sexual Harassment is defined in the Equality Act 2010 as ‘Unwanted conduct related to sex, or of a sexual nature, which has the purpose of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for them.

Employers are under an obligation to protect their employees from sexual harassment by colleagues in the course of their work. Both the employer and the individual accused of the harassing behaviour can be sued. You will see cases taken against both the employer and the individual.

Employers can defend themselves from a sexual harassment claim through training, policies, procedures and swift & effective action.

Under the new Act, if a tribunal finds that an employee has been sexually harassed, the tribunal is required to check if the employer did enough (i.e ‘took reasonable steps’)’ to prevent the harassment. After reviewing this, the tribunal can increase the compensation paid to the employee by up to 25%.

If an employee makes a successful claim for sexual harassment and the employer is found to have breached the new duty, the Worker Protection Act 2023 gives employment tribunals the power to increase any compensation award by up to 25%.

Latest EHRC guidance on how to prevent sexual harrasment

The Equality and Human Rights Commission (EHRC) can also enforce this new duty to prevent sexual harassment by for example conducting its own investigations in organisations in response to claims. To date the EHRC has used its enforcement powers lightly, but this is set to change. In September 24 in support of the new Act, the EHRC updated it technical guidance on Preventing Harassment and Sexual Harassment at work . It’s guidance is designed to “transform workplace cultures” by requiring employers to take positive and proactive “reasonable steps” to prevent sexual harassment of their workers. The reference to workplace culture is new and shows that the EHRC are expecting workplaces to take this seriously. Employers will be expected to carry out risk assessments as basic requirement, and gives examples of what should be done in different scenarios. What comes across is the requirement to take a whole range of operational measures over and above having policies in place.

Employers should also be careful to act if staff allege that a third party (eg customer, supplier or visitor to the office) has sexually harassed them. Although an employer is not directly liable under the new Act, failing to act (eg not investigating) could lead to reputational damage and loss of confidence from staff because the employer is not seeking to prevent sexual harassment at work. The EHRC guidance makes clear that they would be prepared to take enforcement action against companies that overlooked the risks of third-party harassment, clarifying the reach of the new preventative duty.

As the employer, you want to be able to protect your staff from sexual harassment and to show that you took the required reasonable steps to prevent such behaviour or to reduce the risk of it as far as possible.

The table below summarises how employers can protect against claims covers the guidance, covering the 8 points from the EHRC guidance.

To be protected by the reasonable steps defence, employers must do the following:

• Implement clear policies and procedures to explain what inappropriate conduct is and how to report it. These must include hybrid and home workers, and online and social media policies and behaviour, as these are all part of the workplace. Sexual harassment can occur online and in Whatsapp groups.
  

Policies and procedures alone aren’t enough, employers must also:

• Train staff regularly so that they recognise and respond to sexual harassment emphasising that such behaviour is not tolerated.  Training helps employees to be more aware of their own behaviour and better equipped to detect incidents, it can also help to create an environment where disclosure can happen more easily.
• Creating a culture of respect where all employees feel valued, safe from harassment and are sensitive to cultural differences. Inappropriate office culture and banter will need to change.
• Line managers need to be trained to know what appropriate conduct is and how to deal with inappropriate conduct.
• Complaints must be thoroughly investigated and there will need to be disciplinary sanctions for non-compliance. You must get to the bottom of what has happened and consider what needs to change to prevent a reoccurrence in the future.
• Regularly reviewing policies and procedures to ensure that they are effective, upto date and comply with current legislation.
• Set the tone from the top: involving the leadership and upper management in training and in embedding a culture of zero tolerance of sexual harassment which will influence employee behaviour and help staff to feel more comfortable about reporting issues.
  

New duty to prevent sexual harassment at work – how employers can protect against claims

Download our infographic showing the actions for preventing workplace sexual harassment.

The Legal Partners regularly run training sessions in this area, and feedback tells us that these sessions are highly practical, well received, appreciated and effective. If you would like to have a conversation about how we can support you and your teams with training to combat sexual harassment and promote respect in the workplace, or receive advice on how to prepare & protect against claims, please get in touch with me, Ann Gibbon at Ann.Gibbon@thelegalpartners.com.