A significant shift in workplace protection has now taken place as the new duty to prevent sexual harassment came into force on 26 October. This legal reform is a vital step toward ensuring safer and more respectful work environments for employees across all sectors. Historically, the prevention of sexual harassment has relied heavily on reactive measures. However, the new law signals a proactive approach, placing greater responsibility on employers to create environments where harassment is not tolerated, and where preventative measures are embedded within workplace culture.
What’s new? What is the new duty?
The Worker Protection (Amendment of Equality Act 2010) Act 2023 introduces a duty for employers to take reasonable steps to prevent sexual harassment in the workplace. This new duty is aimed at fostering safer work environments by placing the onus on employers to proactively address and mitigate risks related to sexual harassment. The duty covers only sexual harassment as defined by the Equality Act 2010, which refers to unwanted conduct of a sexual nature that violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.
While the Equality Act already protects employees from harassment, the new duty represents a shift in how employers must approach the issue, emphasising prevention over reaction. Failure to meet this duty could lead to increased financial penalties, including up to a 25% uplift in compensation awarded in successful sexual harassment claims.
Practical steps for employers
To meet the requirements of the new duty, employers must implement comprehensive measures that address prevention, reporting, investigation, and support. Below are some practical steps employers should consider:
Policy development and training: Employers should establish and regularly update clear sexual harassment policies that are well-communicated to all employees. Policies should define unacceptable behaviours, outline reporting procedures, and detail the consequences of violating these policies. Training for both employees and managers on these policies and the broader issue of workplace harassment is crucial. This training should be mandatory and refreshed regularly.
Reporting and investigations: Employers must ensure there are clear, accessible channels for employees to report harassment. Investigations should be conducted with confidentiality, impartiality, and efficiency. Employers should train managers to handle complaints sensitively and effectively.
Monitoring and support: Implement systems to regularly monitor workplace culture and identify any areas where harassment may occur. Employers should also offer support to employees who have reported harassment, ensuring that they do not face retaliation or further harm.
Compliance and documentation: Employers should keep detailed records of their policies, training programs, and any complaints and investigations. This documentation can help demonstrate compliance with the new duty if challenged.
What are examples of reasonable steps?
The new law does not specifically define what constitutes “reasonable steps” for preventing harassment, but some actions are widely recognised as effective:
- Developing a well-communicated sexual harassment policy.
- Providing regular, comprehensive training to all employees and additional training to managers on how to handle complaints.
- Creating a safe environment for reporting incidents, ensuring employees can report harassment without fear of retaliation.
- Acting promptly and fairly when complaints are made, including conducting thorough investigations and taking appropriate action.
- Regularly reviewing and auditing the workplace environment to identify and mitigate risks of harassment.
Taking these steps can help employers demonstrate that they are actively working to prevent harassment and, if necessary, defend against claims that they have not complied with their duties.
Is third-party harassment covered?
The EHRC technical guidance confirms that the new duty extends to sexual harassment by third parties, even though an employee cannot bring a standalone claim in the employment tribunal for third-party harassment. Employers should consider the potential risk from third parties when carrying out risk assessments and take reasonable steps to prevent such harassment. Third parties could include clients, customers, or contractors. Employers are required to take reasonable steps to prevent third-party harassment, which could involve notifying third parties of the organisation’s zero-tolerance stance on harassment and including anti-harassment clauses in contracts with suppliers or other partners. Employers should also encourage employees to report third-party harassment and ensure such complaints are taken seriously.
Can we expect further changes?
The Employment Rights Bill which was introduced on 10 October 2024 proposed to amend the Equality Act 2010 to:
- Require employers to take ‘all’ reasonable steps to prevent sexual harassment.
- Re-introduce employer liability for third party harassment.
- Make complaints of sexual harassment public interest disclosures.
- Introduce a power for regulations to specify the reasonable steps an employer must take to prevent sexual harassment.
It is also worth noting the Protection from Sex-Based Harassment in Public Act 2023 received Royal Assent on 18 September 2023. This will extend protections to harassment occurring in public spaces. This reflects a broader societal shift toward zero tolerance of sexual harassment in all settings, not just the workplace.
How can we help?
We understand the complexities and sensitivities involved in managing workplace harassment. Our employment law experts can assist businesses in meeting their legal obligations by providing advice on developing comprehensive sexual harassment policies, delivering effective staff training, and creating supportive environments for employees to report incidents.
We can also help employers navigate investigations and disciplinary procedures, ensuring compliance with the new duty and minimising the risk of legal challenges. Additionally, our team is well-versed in reviewing contracts with third parties to include provisions for preventing harassment and can advise on any future legislative changes that may affect your business.
Conclusion
The new duty to prevent sexual harassment in the workplace marks a critical turning point in the fight to protect employees from harmful behaviours. By requiring employers to take proactive steps, this duty aims to create safer, more respectful workplaces where all employees feel protected. Employers who fail to meet this duty not only risk financial penalties but also damage to their reputation and workforce morale.
If you haven’t already done so now is the time for employers to review their policies and practices. We are here to guide businesses through these changes and ensure they are fully prepared to comply with the new requirements. Together, we can create workplaces where harassment is not just addressed after the fact, but actively prevented from occurring in the first place.