New duty on employers to prevent sexual harassment

The Equality Act 2010 defines sexual harassment as occurring when a person engages in unwanted behaviour of a sexual nature, whether verbal, non-verbal or physical, that (i) violates an individual’s dignity, or (ii) creates an intimidating, hostile, degrading, humiliating or offensive working environment.

The Worker Protection (Amendment of Equality Act) Act (“the new Act”) makes an important amendment to the law on an employer’s duty to protect its employees from sexual harassment. The new Act is due to come into force in October 2024 but employers would be well advised to start taking preparatory steps now to ensure that they are well-equipped to comply with the new obligation when it comes into force.

The new duty

The new Act will introduce a new duty on employers to take “reasonable steps” to prevent sexual harassment of employees during the course of their employment.

Currently an employer has a defence to a harassment claim if it can show that it took all reasonable steps to prevent it. However, there is no legal requirement to do so – it is simply a matter of best practice to mitigate the risk of harassment claims.

The new duty will place a mandatory legal obligation on an employer to proactively take reasonable measures to prevent workplace sexual harassment.

This new duty only applies to sexual harassment and does not extend to harassment based on other protected characteristics. Guidance on the new positive duty and the new Act is expected in an updated statutory EHRC Code of Practice.

If an employee is successful in a claim for sexual harassment and it is held that the employer has breached the new duty, the Employment Tribunal has the power to increase any compensation by up to 25%. This uplift will apply to all compensation awarded, which should act as an incentive for compliance by employers, particularly as compensation for harassment can be expensive – over £50,000 for the most serious injury to feelings award and uncapped compensation for future loss of earnings.

What are “reasonable steps”?

Whilst there is no current guidance on what “reasonable steps” means in respect of this new mandatory duty, we expect that Employment Tribunals will follow existing case law where employers have relied on reasonable steps as a defence to a harassment claim.

The recent case of Fischer v London United Busways set out a list of “reasonable steps” an employer could take which includes:

• Keeping relevant policies up-to-date
• Establishing employee representative groups
• Delivering staff training and workshops
• Raising awareness of equal opportunities

What do you need to do?

Employers should start preparing now to ensure compliance with the new duty. We suggest the following steps:

• Reviewing and updating anti-sexual harassment policies and (where applicable) employment contracts.
• Re-circulating relevant policies to staff.
• Delivering adapted and up-to-date training on preventing harassment.
• Implementing complaints mechanisms to deal with sexual harassment complaints and reports by victims or witnesses.
• Carrying out fresh risk assessments and responding swiftly to any concerns identified.
• Keeping detailed and accurate written records of measures taken and maintained in preventing sexual harassment in the workplace.  

How we can help

We are able to help you put in place the appropriate measures to protect your business.

We are offering clients a fixed price review of anti-sexual harassment policies and advice on implementation and ongoing risk management. Alternatively, we also offer bespoke advice.

If you would like to know more, please contact Jatin Patel.