NEW duty to prevent sexual harassment
With effect from 26 October 2024
What is the new duty?
The Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force on 26 October 2024, and introduces a duty for employers to take reasonable steps to prevent sexual harassment of employees in the course of their employment.
The new law aims to shift employers’ focus towards taking proactive measures to identify risks and to prevent sexual harassment, rather than addressing harassment after it has taken place.
It introduces a new, positive obligation, which will require employers to put “reasonable steps” in place proactively to prevent sexual harassment of employees from arising in the first place.
Employers facing an allegation of sexual harassment will need to demonstrate the targeted measures they have put into place to comply with this new duty.
What guidance is available on the new duty?
The Equality and Human Rights Commission (EHRC) have just last week published their updated technical guidance on preventing workplace sexual harassment, following a period of consultation over the summer. The guidance can be found here.
The guidance is not legally binding but Employment Tribunals are likely to rely on it when deciding if an employer has complied with the new duty.
Here are some of the key points from the guidance:
The new preventative duty is an anticipatory duty. This means that employers must not wait until sexual harassment has happened before acting.
Risk assessments are key. The guidance makes clear that an employer is unlikely to be complying with this preventative duty unless they carry out a risk assessment (see further below).
The preventative duty only applies to sexual harassment. It does not cover harassment related to a protected characteristic.
The EHRC has given more examples of factors that may increase the risk of sexual harassment.
In deciding whether a step is reasonable to take, employers must consider various factors. It is an objective test about what it is reasonable for the employer to do in the circumstances. The guidance recognises that this will vary from employer to employer depending on the size and nature of the employer, the resources available to it and the risk factors which need to be addressed within the particular employer or sector. It should not be a one-off exercise.
Employers will need to act on lessons learnt from previous instances of sexual harassment.
The preventative duty extends to requiring employers to take reasonable steps to prevent sexual harassment of workers by third parties, such as clients and customers.
The guidance contains a short 8 step guide for employers on preventing sexual harassment at work, which summarises the detail found in the guidance itself. Those 8 steps are outlined below.
What happens if an employer gets it wrong?
Employers that fail to comply with the new duty face both financial and reputational risks.
If an employee succeeds with an Employment Tribunal claim for sexual harassment, and the employer is found to have breached its duty to take reasonable steps to prevent the sexual harassment, the Tribunal will be able to uplift compensation by up to 25%. As there is no cap to the compensation which can be awarded, this uplift could be very significant.
In addition, the EHRC has the power to conduct investigations and enforce the new preventative duty, independently of any incident taking place. Larger employers are likely to be at particular risk here.
What does an employer need to do now?
The EHRC has published an 8-step guide for employers, which can be found here. We have listed the key steps below.
Develop an effective anti-harassment policy
Engage your staff
Assess and take steps to reduce risk in the workplace
Develop a robust reporting system
Roll out up to date and tailored training
Deal with complaints immediately and effectively
Address harassment by third parties
Monitor and evaluate actions
If you would like a fixed fee quote for tailored support with implementing the the above steps in your organisation before this new duty comes into effect in 4 weeks, please get in touch.