A new law on preventing sexual harassment in the workplace

Blog

09.05.2024

For a number of years, the Government has been considering the introduction of a proactive duty on employers to prevent sexual harassment in the workplace. This is soon to become a reality with the Worker Protection (Amendment of Equality Act 2010) Act 2023 (the Act) coming into force later this year, on 27 October 2024. Although this is still some months away, it is worth employers considering the implications this new duty will have on their workplace to ensure they are best prepared when it does come into effect.

The new duty to prevent

In summary, the Act amends the Equality Act 2010 to:

Introduce a duty on employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment.
Give employment tribunals the power to uplift sexual harassment compensation by up to 25 per cent where an employer is found to have breached the new duty to prevent sexual harassment.

We will not cover the full journey of the bill through Parliament in this blog (we have covered this to some extent in earlier blogs: A duty on employers to prevent sexual harassment? and Employment law updates you might have missed). However, for those among you who have followed the journey of the bill through Parliament, you will note there has been a watering down of initial proposals (there is no provision to protect against harassment of employees by third parties and the word “all” has been removed from the original wording which envisaged that employers take “all” reasonable steps to prevent sexual harassment). Nevertheless, the new duty to prevent sexual harassment is something employers should take seriously to ensure they are ready when October comes.

Reasonable steps

Currently the law provides that, if an incident of sexual harassment takes place in the workplace, there is a defence available to an employer if it can show that it took “all reasonable steps” to prevent the employee from undertaking the discriminatory act. However, the Act takes this further by introducing responsibility on employers to take preventative measures to prevent sexual harassment.

A key question for employers is what "reasonable steps" to prevent sexual harassment will look like. At this stage there is no guidance specifically on this point (the EHRC has indicated it will follow in September) but, essentially, in taking reasonable steps, employers will need to do something proactive to protect employees. Case law on the “all reasonable steps” defence shows that more will be needed than simply having an anti-harassment policy and generic ‘off the shelf’ annual training.

Practical steps for employers

Many employers will already be taking steps to prevent sexual harassment, but it is always something to keep under review to prevent complacency or cultural slippage. This is particularly so given the new power employment tribunals will have to uplift compensation by up to 25 per cent where an employer has failed to fulfil this duty.

In advance of the EHRC’s guidance, employers may want to consider the following steps:

Continue to build a zero-tolerance culture: in short, commit to "never do nothing". It is fair to say that not all allegations turn out to be well-founded, but this should never be your starting point. Taking prompt action when concerns are raised and ensuring all complaints are investigated will be key.
Ensure the tone is set from the top. It is important for the values of a business to be clear and lived at every level, particularly through the conduct of senior management.
Encourage a "speak up" culture. Staff should know how to raise concerns and be assured they will not suffer adverse consequences if they do so. Having clear policies for raising and dealing with concerns is a given, but you should also ensure they are known by staff and are applied consistently to everyone across the business.
Raise awareness with staff via training, to ensure they understand what behaviours will constitute sexual harassment and the part they can play in preventing it in the workplace.
Know your vulnerabilities and reduce opportunities for sexual harassment to occur. Every business will have different weak areas where harassment may be more likely to occur. It can be helpful to risk assess whether there are individuals or particular groups who are at more risk of harassment than others, or perhaps of perpetrating it, and take steps to reduce that risk.
Even though liability for third party harassment isn’t being brought into effect, employers should not ignore complaints by employees about third parties, since a failure to deal with such complaints could undermine confidence.