The duty to prevent sexual harassment: six months on

It is six months since the preventative duty on sexual harassment came into force. To recap, the duty requires employers to take reasonable steps to prevent sexual harassment of their workers in the course of their employment (known as the preventative duty) and came into effect on 26 October 2024 through an amendment to the Equality Act 2010.

Given the significance of the preventative duty, and the fact it is a continuing obligation, we wanted to remind employers of the duty, how they might comply (along with a cautionary tale of seeming non-compliance) and what is on the horizon in this area of law.

The preventative duty

In summary, the preventative duty is an anticipatory one, which means that employers should anticipate the risks of sexual harassment happening in their workplace and take reasonable steps to avoid them, rather than waiting for an incident of sexual harassment to occur and then taking reactive steps.

Significantly, the Equality and Human Rights Commission (EHRC) is clear in its technical guidance that it considers the preventative duty to extend to harassment by third parties, which includes suppliers, customers and members of the public (even though the law at present does not give employees a claim for third party harassment – something which is proposed by the Employment Rights Bill, see below).

While an employee cannot bring a standalone claim for breach of the preventative duty, if an employee is successful in a claim for harassment (which involved, to any extent, sexual harassment), an employment tribunal can increase compensation by up to 25 per cent if it finds the employer has not complied with the duty to prevent sexual harassment. The uplift could apply to all discrimination compensation awarded, not just compensation for sexual harassment. A finding that the preventative duty has been breached could therefore be costly for employers.

As well as being policed by the courts, the EHRC has the power to take enforcement action against employers suspected of breaching the preventative duty. This includes investigating the employer, issuing an unlawful act notice, entering into a binding agreement with an employer or applying for an injunction to prevent future breaches.

Reasonable steps and EHRC guidance

So, what are reasonable steps? The EHRC updated its "Sexual harassment and harassment at work: technical guidance" to assist employers with complying with the new duty and understanding the types of actions required. Alongside its guidance, the EHRC published an "Employer 8-step guide: preventing sexual harassment at work" which sets out 8 steps of preventative action (ie reasonable steps) employers might take:

• Step 1: develop an effective anti-harassment policy
• Step 2: engage staff
• Step 3: assess and take steps to reduce risks
• Step 4: set up a reporting system
• Step 5: training
• Step 6: handling complaints
• Step 7: deal with third party harassment
• Step 8: monitor and evaluate actions

See our earlier article "Final EHRC guidance on preventing sexual harassment at work" for a full summary of the 8-step guide.

Although the EHRC’s guidance is not legally binding, it will be taken into account by employment tribunals when deciding if an employer has breached the new preventative duty and whether to award an uplift to any compensation.

All of the steps above should be followed; however, we wish to highlight Step 3 in particular: "Step 3: assess and take steps to reduce risks in particular". The EHRC has made it clear that "an employer is unlikely to be able to comply with the preventative duty unless they carry out a risk assessment". As such, producing tailored and regular risk assessments is a fundamental component of the preventative duty. Given this is a continuing duty, it is important that employers treat risk assessments as "live" documents and keep them under review, to ensure they remain accurate. See our earlier blogs for suggestions of how organisations might approach sexual harassment risk assessments: "The 'new' duty to prevent sexual harassment: insights from Down Under" and "Sexual harassment: a safeguarding perspective".

McDonald’s – a cautionary tale and further guidance on reasonable steps

As of yet, we have not seen an employment tribunal case invoke the new preventative duty. However, we have no doubt that these will come. What we do have is a clear example of EHRC action in relation to McDonald’s, which has been in and out of the press for years in relation to harassment claims (including for sexual harassment).

You may recall that in February 2023 (before the preventative duty), McDonald’s Restaurants Limited (MRL) signed what is known as a "section 23 Agreement" with the EHRC. This is a legally binding agreement whereby organisations agree not to commit breaches of the Equality Act 2010 and ordinarily agree to take various steps to comply with their duties.

Fast forward to this year, and harassment claims against McDonald’s have continued to rise despite the section 23 Agreement. Accordingly, on 14 March 2025, the EHRC wrote to all McDonald’s franchises (the original section 23 Agreement did not include franchises) to remind them of their legal obligations regarding complaints of discrimination and harassment, including the new preventative duty.

The EHRC’s letter includes helpful guidance for McDonald’s (and other employers) on what the EHRC considers reasonable steps in the context of the preventative duty:

• Communicating your business’s zero-tolerance approach to sexual harassment.
• Undertaking regular risk assessments to identify where sexual harassment may occur and the steps needed to prevent it.
• Ensuring younger and more vulnerable workers are properly safeguarded.
• Ensuring complaints are dealt with sensitively, and effectively through robust policies and procedures.
• Being actively aware of what is happening in your workplace and identifying any warning signs, by engaging with staff.

 Whether the EHRC will take further action is, as of yet, unclear and indeed the EHRC do not have a history of taking serious enforcement action. However, the reputational damage to McDonald’s as a result of the EHRC involvement is significant and employers will no doubt wish to avoid such negative attention.

Future expansion of the preventative duty and harassment law

Employers should also be aware that the government is set to expand the preventative duty and harassment law via the Employments Rights Bill (ERB), which is currently making its way through parliament.

As currently drafted, the ERB will:

• Extend the preventative duty such that employers will be required to take all reasonable steps to prevent sexual harassment of workers, which would raise the compliance bar even higher.
• Make employers liable for one-off third-party harassment during employment, whether known about by the employer or not. Liability would apply to any type of harassment, not just sexual harassment. This will be a significant extension of employers’ liability for harassment (currently, employers are only liable for discrimination and harassment committed by employees in the course of their employment).
• Give employees six months in which to bring a harassment claim (currently the limit is three months).

Although the Government has indicated reforms won’t be brought in by the ERB until 2026, it gives a clear indication of the direction of travel in this area. In light of this, and the fact that the preventative duty is a continuing one, employers should continue to be proactive in their approach to assessing the risk of sexual harassment by employees and third parties in their workplace and taking proactive action to prevent it.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, May 2025