From October 2024, employers will have a new legal obligation to take reasonable steps to prevent sexual harassment. What can employers do now to prepare for this 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 Equality and Human Right Commission (EHRC) has just published a consultation on amendments to its technical guidance on sexual harassment and harassment at work, which contains extra information on the new preventative duty.
With the new duty on the horizon, we explain what's changing and what employers need to do to get ready.
The new duty to prevent sexual harassment: how is the law changing?
The new law aims to shift employers' focus towards taking proactive measures to identify risks and to prevent sexual harassment, rather than focusing on addressing harassment in a reactive way.
Under current law, sexual harassment is prohibited. Employers are liable for harassment committed by their workers in the course of employment, but they will have a defence against claims if the employer can show that they took "all reasonable steps" to prevent the harassment. This gives employers a real incentive to take action to prevent harassment in the workplace, but the new law goes further than this and creates a positive legal obligation for employers to try to stop sexual harassment from happening in the first place by taking reasonable steps to prevent it.
Employers which 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 avoid the sexual harassment - the tribunal will be able to uplift compensation for harassment by up to 25%. As there is no cap to the compensation which can be awarded for discriminatory harassment, this uplift could be very significant. From a reputational perspective, the Equality and Human Rights Commission (EHRC) also has the power to enforce the duty and can conduct its own investigations.
What are reasonable steps and what can employers do to demonstrate compliance?
The new law is raising the bar and employers will be expected to
do more proactively to prevent sexual harassment.
EHRC and other guidance
The EHRC has published a draft of its updated guidance on sexual harassment to reflect the new obligation. This is subject to consultation so may still change, but it is expected to be finalised in September, and employers can be preparing for the new duty now based on this draft.
The draft updated guidance adds a whole new section on the duty to prevent sexual harassment of workers, called the "preventative duty". This confirms that employers will need to anticipate scenarios when workers may be subject to sexual harassment in the course of employment and take action to prevent it. The preventative duty also means that, if sexual harassment has taken place, the employer should take action to stop it from happening again. This indicates that assessing risk will be important (discussed further below).
The draft makes it clear that the preventative duty is intended to apply to harassment by third parties, such as customers and clients. This is expressly covered in two of the new examples. In one of these examples, the employer has taken a variety of measures to update policies and train staff. However, because the employer failed to consider the risk of sexual harassment by customers, despite an incident of such harassment occurring only six months ago, the guidance says that the employer has failed to comply with the preventative duty. This suggests that the EHRC will expect employers to treat sexual harassment by third parties equally as seriously as harassment within the workplace.
Employers are not used to this expectation. Harassment by third parties is not currently covered by the law (although the new Labour government proposes that it should be), so many employers may currently pay less attention to this than to harassment by colleagues. A failure to comply with the duty in relation to third parties is unlikely to lead to an uplift to compensation in most cases, because this only applies where the employer is legally liable for the sexual harassment. The EHRC's powers of enforcement will still apply, however, which means a failure of this duty in relation to third parties could lead to difficult EHRC investigations and reputational damage.
The new draft section currently cross-refers to the existing content of the guidance on the detail of what steps may be reasonable and practical steps the employer can take to comply. It also confirms that what is reasonable will vary and will depend on factors such as the employer's size, the sector it operates in, the working environment and its resources. It seems clear that more will be expected of larger employers. All employers should as a minimum take the following steps:
- consider the risks of sexual harassment occurring in the course of employment;
- consider what steps it could take to reduce those risks and prevent sexual harassment of their workers;
- consider which of those steps it would be reasonable for it to take; and
- implement those reasonable steps.
In addition to the existing and draft EHRC guidance on sexual harassment, employers can get a steer from caselaw about the "all reasonable steps" defence, and guidance in other jurisdictions where they have a similar duty to prevent sexual harassment.
We have created a guide to the six areas which we think employers should focus on. The specific steps employers will need to take will depend on their particular business, size and resources.
We look at a few of these areas in more detail below.
Training
The need to provide training in this area will come as no surprise. Training, however, needs to be effective if it is going to count as one of the reasonable steps. Recent tribunal caselaw indicates that training which is simply a tick-box exercise - or which is 'stale' because it is old or no longer relevant - will not do the job.
When putting together a training programme, employers should think about designing the training for different audiences within the business. For example, senior leadership, supervisors and managers should receive training about how to role model appropriate behaviours, how to spot sexual harassment and what to do if they receive a report of harassment. Staff should understand what behaviours can constitute sexual harassment and what their role can be in calling out problematic behaviours. Allyship or active bystander training can be hugely beneficial in creating a culture where people feel able to speak up or flag concerns at an early stage.
For training to be effective, it's important that it is not just a one-off session which is quickly forgotten – particularly in businesses where staff turnover is high. Refresher sessions should be arranged on a regular basis and staff should be clear what the overriding messages from the training are. These messages should then be reflected in the business' practices and embedded into the culture so that the behaviours expected of all staff is clear.
Employers should keep records of attendance at training to ensure they can identify who still needs to be covered.
Assessing risk
In Australia, there is a similar new duty for employers to take preventative steps to eliminate sexual harassment and discrimination in the workplace. The Australian Human Rights Commission has published detailed guidelines to help employers understand and comply with the duty.
The use of risk assessments is key in complying with the new duty in Australia. The obligation for employers to take proactive steps to enact change has resulted in employers viewing sexual harassment through a health and safety lens, and using risk assessments to identify risks and mitigation measures.
Even if formal, structured risk assessments do not take off in the same way in the UK, employers will need to understand where the risks are in their business and take action to address them. This gets to the heart of the new preventative duty, as is made clear in the draft EHRC guidance.
There are various ways that employers can identify risks, including employee surveys, keeping records of formal or informal complaints, exit interviews, reviewing absences, culture audits and focus groups.
Risks will be specific to each particular business, but factors which could increase the risk of sexual harassment may include things like the presence of alcohol at events, lone working, work travel and customer-facing duties. Employers need to identify the real risks in their own business and then consider what can be done to mitigate those risks. The draft EHRC guidance indicates that this is equally important for risks caused by all kinds of third parties (including customers, clients, service users, patients, friends and family of colleagues, delegates at a conference and members of the public).
Complaints channels
Employers will want to be able to show that they have taken measures to create a culture in which everyone feels safe and can speak up about inappropriate behaviour. There should be clear avenues and channels for people to raise concerns about sexual harassment, and anyone who raises concerns should feel that they are being supported, taken seriously and protected from reprisals. Employee resources and support should be clearly signposted.
All complaints should be investigated and dealt with promptly, fairly and in accordance with a complaints-handling process. The person who made the complaint should understand the outcome.
The business should also carefully reflect on the outcome of any investigation as individual complaints can identify wider cultural problems or risks within certain areas of the business. Identifying and addressing those risks is key to being able to show that preventative steps have been taken.
Act now to get ahead of the curve
There are many other areas for employers to think about, aside from the three areas explored above. For example, employers will need to have effective and up-to-date contracts, policies and procedures. They will need to ensure that senior leadership is seen to be setting the tone by delivering anti-harassment messaging or statements of intent. Employers should also be considering creating a database of sexual harassment complaints they have received, and appointing and training guardians to support people with concerns about harassment – as recommended by the EHRC guidance.
Aside from the need to comply with the new duty, taking action to prevent sexual harassment will have benefits for workplace culture. A safe working environment should lead to fewer complaints, absences and departures. Taking steps to tackle and prevent sexual harassment will also be consistent with wider DE&I initiatives.
Before the general election, the Labour Party said that it intends to raise the bar on sexual harassment even further by requiring employers to take "all reasonable steps" to prevent sexual harassment, making employers liable for harassment by customers and other third parties, and by giving whistleblowing protection to those who report sexual harassment. These steps may take some time to implement in practice, but employers will be much better placed to address these anticipated changes in the law if they have already reviewed and improved their practices on the prevention of sexual harassment.
The training team at Lewis Silkin work regularly in this area, devising training programmes highlighting issues around harassment and bullying and promoting respect in the workplace to staff, managers and HR teams. Lewis Silkin also has a dedicated Workplace Investigations team which is experienced in conducting investigations into allegations of sexual harassment. If you would like to have a conversation about how we can support you with training, investigations, or any of the six focus areas we've identified for preventing sexual harassment, please contact our head of training Lucy Hendley, our head of Investigations Karen Baxter, or your usual Lewis Silkin contact.
Download our guide to the six areas to focus on here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.