The New Duty of Employers to Prevent Sexual Harassment in the Workplace

Is your business ready?

With effect from 26 October 2024, all employers will have a legal duty to actively prevent sexual harassment at work. We outline below the impact of this new legislation on employers, and we take a look at the steps which employers should implement now, in order to ensure compliance with the new obligations, thereby avoiding financial penalties and reputational damage.

Whilst certain types of business will be higher risk than others, this is an area which all businesses will need to consider very carefully.

What is sexual harassment?

In May 2023, a Trades Union Congress poll of over 1,000 women revealed that 3 in 5 women have experienced sexual harassment, bullying or abuse at work, with the number rising to almost 2 in 3 for women aged 25 to 34. The Equality and Human Rights Commission (EHRC) has undertaken its own research to establish the prevalence of sexual harassment in the workplace, following the initial Harvey Weinstein allegations in 2017, and the subsequent #MeToo campaign. In January 2020, the EHRC wrote to large employers across the UK to ask them to take preventative steps to safeguard their employees from harassment.

The actual legal definition of sexual harassment has not changed since the Equality Act 2010, in which it is described as:

‘Unwanted conduct of a sexual nature which has the purpose or effect of violating the victim’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them (s.26 Equality Act 2010).’

Examples of sexual harassment are wide-ranging, from sexual comments or jokes and sexually explicit emails or text messages, to suggestive looks, unwelcome touching and intrusive questions.

The New Duty of employers

So, what has changed? Under the new Worker Protection (Amendment of Equality Act 2010) Act 2023, employers will be required to take ‘reasonable steps’ to ‘prevent’ the sexual harassment of employees ‘in the course of their employment’.

This immediately raises two questions:

What are considered to be ‘reasonable steps’ in these circumstances?
What exactly does ‘in the course of their employment’ mean?

Reasonable steps

It is unknown at the moment whether Employment Tribunals will take a very literal interpretation of the wording. There is certainly no ‘one size fits all’ approach. What constitutes ‘reasonable steps’ will vary from employer to employer, depending on size, sector, working environment and resources relevant to that company. What might be considered reasonable in a large distribution centre, might be different to a small theatre company, for example.

Guidance produced by the EHRC (the EHRC’s July 2024 update can be accessed through this link: Consultation: technical guidance on sexual harassment and harassment at work | EHRC (equalityhumanrights.com)) suggests that the duty imposed on employers is both preventative and anticipatory, and that employers are required to take steps to mitigate the risk of sexual harassment occurring. In a case where sexual harassment has occurred, employers must take further steps to engage with the situation and consider what steps to take to deal with the situation presented and crucially in order to prevent it or a similar event happening again – i.e., ‘preventative’ and ‘anticipatory’ steps.

In the course of employment

The ‘workplace’ is a wide concept. It can extend beyond the building/physical place of work. Indeed, social gatherings involving work colleagues, and parties organised by employers and even workplace WhatsApp groups (for example) can all be viewed as taking place in the workplace, even if they are held off the premises and/or out of working hours.

Third parties

The new duty also extends to the prevention of sexual harassment of workers by third parties. Again, as this is a new area, we do not know yet what view Tribunals will take, whether it will be an expansive definitive or whether it will be construed narrowly. It could potentially include clients, customers, service users, patients, suppliers and visitors. We would advise a cautious approach, assuming a wide definition of ‘third parties’, at least for the time being. Employers should consider the nature of their workplace, the types of third parties workers may come into contact with, and the likelihood of such contact happening.

The EHRC takes an expansive view, giving as examples of third parties, customers, clients, patients, friends and family and members of the public. Indeed, anyone who is not an employee could fall within this definition, even a pupil at school or a resident at a care home.

What approach should employers take?

It is important for employers to anticipate scenarios which pose a potential risk of sexual harassment occurring, and for them to put in place effective measures to prevent this. Whatever steps are taken, it is essential to document these carefully (including reasons and a risk assessment), so as to maintain a paper trail, which will be a useful defence in the event of a claim.

We would suggest that employers should take the following six basic steps now, in readiness for the impending changes:

1. Train your workforce

Training should be given now to all existing staff. Going forward, it should become part of the training programme when onboarding new employees, and be carried out (as a refresher) at least annually thereafter. Make sure that your training is tailored to your specific work-environment and operational context. You should consider the most appropriate format for the training in your circumstances, in order to maximise its impact, whether in-person seminars, eLearning, online training etc.

Any training should include a clear explanation in relation to:

what sexual harassment is;
required workplace behaviour (including at work-related social events, in office banter and in online communications);
what steps employees should take if they experience or witness harassment, or if harassment is reported to them;
what the business will do if anyone is found to have committed an act of harassment.

The EHRC Guidance suggests three categories of training, in respect of: (i) workers; (ii) managers; and (iii) harassment champions or guardians. For example, it is important that managers are aware of signs that harassment may be occurring, and that they understand the importance of taking relevant and appropriate action quickly.

2. Undertake a risk assessment

Make sure that you identify risk factors for sexual harassment which are specific to your workplace, taking into account any previous incidents of sexual harassment. Identify control measures for mitigating risks and make sure that reasonable mitigation has been implemented.

Under EHRC guidance, the following factors should be considered:

Power imbalance
Job insecurity
Lone working
Presence of alcohol
Customer-facing duties
Particular events that raise tensions locally or nationally
Lack of diversity in the workforce
Workers on secondment.

3. Make sure that your policies deal specifically with sexual harassment

This can be done by having in place a specific Sexual Harassment Policy, or by updating your current Anti-harassment and Bullying Policy to deal with sexual harassment. It is important that the policy explains your zero-tolerance approach, and that it is easily accessible and well-communicated to workers. As a matter of good practice, all policies should be regularly evaluated for effectiveness.

This policy/updated policy should form part of the training mentioned above.

4. Encourage reporting

We would recommend appointing a designated individual, with responsibility for sexual harassment (perhaps within a safeguarding role), similar to a whistleblowing officer. Appropriate training should be considered as part of such appointment.

As mentioned in point 1 above, ensure that your workers know about the reporting process. Depending on the size of your business, you could consider implementing an online telephone reporting system. It is important to have an option for anonymous reporting, in order to capture concerns that would not otherwise be raised, but where it is clear what detail is necessary (for example, date, time, individuals concerned, witnesses) for context and to allow for a meaningful investigation.

It is essential to remove any fear of retaliation and to create a feeling of trust in the reporting process. Employees should also have options for resolving the situation either informally or formally (although informal action should not be a prerequisite to a formal complaint).

5. Undertake a staff survey

You can only prevent sexual harassment if you have a clear view of where and how it is occurring in your business. A staff survey (undertaken on an anonymous basis) might be a helpful device to enable employers to understand how many people have faced sexual harassment, but not reported it, and why. It can indicate specific areas for concern, which can then be addressed in advance. Engaging in consultation with employee representatives will be a powerful tool for employers when demonstrating compliance with the new duty.

6. Consider steps to take in relation to third parties

You should reconsider your contracts, for example with suppliers, to ensure that they refer to the new duty to prevent sexual harassment. A supplier code of conduct is useful in these circumstances. It is also important to consider a system for dealing with instances of third-party harassment effectively, and to monitor and evaluate the effectiveness of your approach.

Penalties for non-compliance

It is important to note that a worker cannot bring a standalone claim in an Employment Tribunal for breach of the new duty relating to sexual harassment. However, if successful in a claim of harassment of any sort, then a claimant can bring into play whether that harassment involved (‘to any extent’), any elements of sexual harassment.

Under the new legislation, increased compensation can be awarded to an employee by the Employment Tribunal in the event that the preventative duty is found to have been breached by the employer. Compensation can be increased by up to 25%, taking in account the extent of the breach.

In addition, there are possible EHRC enforcement mechanisms which can be used. The EHRC has the power to investigate an employer and, if it is found that there has been a breach of the duty, the EHRC may issue a notice confirming the breach and requiring the employer to prepare an action plan.

Key points to note:

Harassment does not necessarily involve a longstanding campaign. A one-off incident is sufficient to constitute harassment (for example, a single comment).
A worker does not need to make it clear that they find the behaviour unacceptable. Conduct can still amount to harassment if the worker does not object to it.
It is the perception of the victim that is important. Tribunal cases will be assessed from the viewpoint of the claimant (what effect did the alleged harassment have on the victim?).
The motive of the harasser is largely irrelevant. Behaviour can amount to harassment even if that is not the intention or purpose of the harasser (for example if the alleged harasser considers the comments or behaviour to be a compliment).
Sexual harassment does not have to be physical in nature. Indeed, it is more common for it to be verbal.
Office banter can constitute sexual harassment. It can be challenging for employers to distinguish between what might be acceptable banter and harassment, especially if the victim has been taking part in the banter, for example, when the proverbial line might have been crossed.
The new preventative duty relates to sexual harassment only, and not to other forms of harassment (for example, harassment related to another protected characteristic, such as age or race). The duty imposed on employers is both preventative and anticipatory. Steps must be taken before the sexual harassment occurs.
Sexual harassment of workers can take place away from the employer’s physical premises. Consider challenges relating to office parties and social media (for example, employee What’sApp groups).
Make sure that you also follow your grievance and disciplinary policies and procedures. Any sanctions must still be reasonable and proportionate (for example, a finding of sexual harassment might not be serious enough to warrant the dismissal of the harasser).

There is no doubt that the new legislation marks a noticeable shift in favour of would-be claimants. Employers should be able to demonstrate that they have engaged in an ongoing process of monitoring and prevention, which involves regular review and a genuine willingness to make improvements and changes, if required.

For further information, any questions, and requests for documentation (including policies), please contact Boardside.