New Duty to take Reasonable Steps to Prevent Sexual Harassment

The Worker Protection Act (amendment of Equality Act 2010) 2023 (the Worker Protection Act 2023) will come into force on 26 October 2024. It introduces a new duty for employers to take reasonable steps to prevent sexual harassment of employees in the course of their employment.

In this article, we explore what exactly is changing and what should you be doing as an employer to prepare for the changes?

What is sexual harassment and who is protected?

“Sexual harassment” is defined in the Equality Act 2010 (the EqA) as “unwanted conduct of a sexual nature” which has “the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them”. 

The EqA protects employees against sexual harassment in the course of their employment.  An “employee” for the purposes of the EqA includes employees and workers, contractors and self-employed people hired to personally do the work and job applicants.

In January 2020, the Equality and Human Rights Commission (ECHR) issued technical guidance on sexual harassment at work to help employers and workers understand how the Equality Act 2010 prohibits harassment at work. The guidance can be found at here.  

The guidance advises that “unwanted conduct of a sexual nature” includes a wide range of behaviour including but not limited to sexual comments or jokes, suggestive looks, staring or leering, propositions and sexual advances, sexual gestures, sexual posts or contact on social media and unwelcome touching and hugging, massaging and kissing.

What is Changing?

Under current legislation, employers are liable for sexual harassment committed by their workers in the course of employment. This can include harassment that takes place outside the physical workplace such as at work related events, work conferences and office parties.

An employer will have a defence against a claim for sexual harassment if it can show that it took “all reasonable steps” to prevent the harassment. The defence rarely succeeds in practice as it is often difficult for an employer to show that they have taken all such steps.

Whilst the “all reasonable steps” defence will remain, the new law introduces a positive obligation on employers to try to stop sexual harassment in the course of employment before it occurs by taking reasonable steps to prevent it. Where harassment has already taken place, the duty also requires the employer to take action to stop sexual harassment from taking place again.

Can an employee bring a claim for breaching the duty?

There is no freestanding right for an employee to bring a claim for an employer’s breach of the duty. The Employment Tribunal will only consider whether an employer has breached the duty once it has upheld an employee’s claim for sexual harassment.

What are the consequences of not complying with the duty?

If an employee succeeds in a claim for sexual harassment and the Employment Tribunal decides that the employer has breached its duty to take reasonable steps to prevent sexual harassment, it can order the employer to uplift compensation by up to 25%.

Separately, an employer may be investigated by the EHCR, which will have powers to enforce the duty.

Does the new duty apply where staff are sexually harassed by third parties?

Currently, an employee cannot bring a claim under the EqA if they are sexually harassed by a third party such as a customer, client or member of the public in the course of their employment. That notwithstanding, the wording of the relevant provision in the Worker Protection Act 2023 states that “an employer (A) must take reasonable steps to prevent sexual harassment of employees of A in the course of their employment.”   The duty is therefore wide enough to include third party harassment.

The ECHR guidance also clearly states that the duty requires employers to take reasonable steps to prevent sexual harassment of employees by third parties so that the ECHR could take action against an employer who breaches the duty in respect of third parties.

It is difficult to see however how the uplift to compensation provisions in the Worker Protection Act 2023 could apply whilst there is no specific right for an employee to bring a harassment claim based on the actions of third parties.  Prior to the Election, the Labour party stated that it would seek to introduce protection for employees against third party harassment and this may therefore change in the future.  

What reasonable steps might an employer take to prevent sexual harassment?

The ECHR recently updated its technical guidance to include information on the new preventative duty. The draft of its updated guidance is subject to consultation so may still change but it is expected to be finalised very shortly. Employers can therefore begin preparing for the new duty based on the draft.  

The guidance states that what reasonable steps an employer should take will vary from employer to employer and will depend on its size and resources, the sector in which it operates, the working environment and its resources.  There are no particular criteria or minimum standards an employer must meet however, no employer is exempt from the duty.

Steps which employers should consider taking include the following:-

1. Having and implementing a clear and regularly updated equal opportunities or equality, diversity and inclusion policy and an anti-harassment and bullying policy.
2. Making all staff aware of the policies and their implications.
3. Providing mandatory training for all staff on what amounts to sexual harassment, standards of behaviour expected in the workplace and how to raise a complaint. Managers should be given additional training in identifying and handling harassment issues.  
4. Encouraging the reporting of sexual harassment. Employees who make complaints or are witnesses to complaints should also be monitored to ensure that no victimisation takes place.
5. Investigating and dealing with all complaints of harassment appropriately.
6. Liaising with employees to ascertain the extent of any problem or potential risk of sexual harassment both internally and in relation to third-parties. Employers should also consider and, where reasonable, act on any initiatives proposed by employees
7. Fostering an inclusive culture and taking a zero-tolerance approach to harassment.
8. Having workplace champions to provide support and advice to those who experience or witness sexual harassment.  

Please note this is not an exhaustive list.

When should employers begin preparing for the new duty?

Employers should act now to ensure they are fully compliant with the new duty to prevent sexual harassment when it comes into force on 26 October 2024.  Even if you already have measures in place to prevent sexual harassment, it is worth reviewing those measures to ensure they are fit for purpose once the new duty comes in.

How Pinney Talfourd can help?

Our Employment team has extensive experience of advising organisations on equality issues including sexual harassment. If you would like advice on the steps your organisation should be taking to ensure it is fully compliant with the new duty or on any related matters, then please contact Charlotte Buck or Alex Pearce.