FAQs: The new duty to prevent sexual harassment in the workplace

What is the legislation underpinning the new duty and when does it come into force?

The Worker Protection (Amendment of Equality Act 2010) Act 2023 (the "Act") is the legislation that brings into force the new duty. It does so by adding new provisions to the Equality Act 2010 and Equality Act 2006.

The Act was passed on 26 October 2023 and the new duty came into force on 26 October 2024 (one year from when the Act was passed).

What is the new duty to prevent sexual harassment in the workplace?

The Act creates a new mandatory duty on employers to take reasonable steps to prevent the sexual harassment of their employees in the course of their employment (the “Preventative Duty”).  

“Sexual harassment” in this context has the same meaning given to that term under the Equality Act 2010 (i.e. unwanted conduct of a sexual nature).

The Preventative Duty is an anticipatory duty intended to transform workplace cultures by requiring employers to take positive, proactive steps to prevent sexual harassment in the workplace and encouraging them to regularly review their processes in this respect. It sits alongside employees’ existing protections under the Equality Act 2010.  

Note that the new provisions are aimed at addressing and preventing sexual harassment only. That is, unwanted conduct of a sexual nature that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. The new provisions do not apply to harassment based on other protected characteristics, such as disability or race.

It is also important to note that no employer is exempt from the Preventative Duty. It applies to all employers, regardless of size or sector.

Does the legislation specify what is meant by “reasonable steps”?

No.  

The Explanatory Notes to the Act state that “reasonable steps” depend on the specific circumstances of the employer, including its size and sector and other relevant facts. In most cases, the employer’s practices and procedures (e.g. grievance and reporting procedures) for preventing and dealing with sexual harassment are likely to be relevant.

What is likely to amount to “reasonable steps” will therefore be determined on a case by case basis. This is an objective test depending on the facts and circumstances of each situation. 

The updated technical guidance on sexual harassment and harassment at work issued by the Equality and Human Rights Commission (“EHRC”) on 26 September 2024 (the “Technical Guidance”) provides guidance on this matter and the factors that may be relevant in deciding whether a step is reasonable.

The Technical Guidance confirms that what is reasonable will vary from employer to employer and will depend on factors such as the employer’s size and resources, the sector it operates in and the nature of the working environment

The Technical Guidance states that employers should:

• consider the risks of sexual harassment occurring in the course of employment;
• consider what steps they could take to reduce those risks and prevent sexual harassment of their workers;
• consider which of those steps it would be reasonable for them to take; and
• implement those reasonable steps.

Can an individual bring a standalone claim for failure to comply with this new duty?

No. The Act is clear that Employment Tribunals will not have jurisdiction to determine standalone claims for breach of the Preventative Duty.

The Act requires Employment Tribunals to consider whether an employer has breached the Preventative Duty in the event that it finds in favour of an individual who has brought a harassment claim against that employer (a claim which involves sexual harassment “to any extent”) and has ordered it to pay compensation to that individual.  

In other words, an individual must first be successful in bringing a harassment claim against the employer. That will then trigger an obligation on the Tribunal to consider whether and the extent to which the employer has also breached its duty to take reasonable steps to prevent sexual harassment of its employees in the course of their employment.  

What are the consequences of a breach?

If an Employment Tribunal finds that an employer has breached the Preventative Duty, it may order it to pay an uplift to the compensation it has already awarded the individual in respect of their claim (the “Compensation Uplift”). 

The amount of the Compensation Uplift should reflect the extent to which, in the Tribunal’s opinion, the employer breached the Preventative Duty and is capped at 25% of the compensation awarded to the individual.

The EHRC also has enforcement powers – direct enforcement powers - over this new duty.

What can the EHRC do?

The EHRC’s enforcement powers are expressly extended to apply to the Preventative Duty.

This means that the EHRC can, among other things:

• conduct an investigation into the employer when it suspects that it has committed a breach of the duty (such suspicions may be triggered by the instigation of Tribunal proceedings against the employer);

• issue an unlawful act notice (with or without an action plan) on the employer if/when its investigation concludes that a breach has been committed; 

• enter into a binding agreement with the employer in order to address ongoing issues; and

• assist with or intervene in certain legal disputes.

The EHRC can use its enforcement powers if it suspects that the Preventative Duty has not been complied with. An incident of sexual harassment does not need to have occurred in order to trigger this.  

Is there any guidance we can refer to on this?

1. Develop an anti-harassment policy. The guidance lists what should be included in such a policy.
2. Engage staff. This can be done by conducting regular one-to-ones, staff surveys and exit interviews, for example.
3. Assess and take steps to reduce risk in the workplace (i.e. conduct a risk assessment and take steps to minimise the risks identified).
4. Reporting. Consider using a reporting system that allows workers to raise an issue either anonymously or in name.
5. Training. Train all staff, including managers and senior staff on what sexual harassment in the workplace looks like, what to do if they experience or witness it and how to handle complaints of harassment.
6. Act immediately when a complaint is made. Act to resolve the complaint, taking into account how the complainant wants it resolved, respecting the confidentiality of all parties.
7. Deal with harassment by third parties (a customer, client or supplier, for example).
8. Monitor and evaluate actions taken. That is, evaluate the effectiveness of the steps taken by, for example, carrying out regular staff surveys and regularly reviewing policies, procedures, training and formal and informal complaints made.

What can employers do to prepare for the new duty to prevent sexual harassment in the workplace?

• Carry out a risk assessment, including by reference to any previous complaints received and feedback given in exit interviews and/or any culture audits/surveys. Employers should consider the activities of their staff and circumstances in which there may be a heightened risk of sexual harassment occurring and what can be done to prevent this.  Employees could also be involved in this process by way of a staff survey, or management meeting with staff liaison committees/representatives (if they exist). Staff can be asked what they perceive to be risks they may be subject to and provide suggestions as to how the employer could address them.
   
• Review/amend existing policies (e.g. anti-harassment policy, “speak-up” policy, social media policy, etc) to ensure they are up-to-date and relevant and draw staff/management’s attention to them. Although not an explicit requirement, consider whether to put in place a standalone policy against sexual harassment. Consider whether the policies in place are robust, effective and easily accessible.
   
• Reiterate/re-issue a strong message from management to all staff about the organisation’s approach to harassment / discriminatory behaviour and remind them about its culture, values and the behaviour expected from all employees. Draw attention to all relevant policies/procedures.  
   
• Provide training (or refresher training) to help staff members avoid the threat of harassment and/or provide guidance on what to do if they witness or experience it. In particular, training should be tailored for senior managers, line managers, HR, junior staff and new joiners, etc.  Training should be mandatory and the employer should keep a record of the training provided and who attends. It should also be refreshed at regular intervals (annually, for example). 
   
• Consider having specially trained members of staff who can act as a point of contact/support for anyone who wants to discuss or raise concerns about sexual harassment on a confidential basis (for example, by providing witnesses to harassment the means to safely intervene or support victims). The identities of those specially trained individuals and how they can be contacted should be shared with all staff and be easily accessible (e.g. via the intranet).  
   
• Carry out annual staff surveys to ascertain whether employees feel confident to report incidents and, if not, ascertain why not. This would allow employers to identify and act on any issues and also measure progress. Exit interviews are also an important way of ascertaining whether there are any particular workplace issues or concerns regarding culture which should be addressed.   
   
• Consider creating reporting registers for complaints about harassment.  This would allow ongoing monitoring to spot themes/patterns or particularly risky practices. Action can then be taken to address those patterns, etc. However, there are likely to be data protection implications in creating/maintaining a register/log of complaints in this way. Employers should therefore take legal advice and consider these factors very carefully before implementing such a measure.
   
• Make it clear via communications and signs that sexual harassment of staff will not be tolerated. This would send a strong message to both staff and third parties, which may be helpful in the event that claims involving harassment by third parties arise (see Question 9 below).  Review contractual terms with third parties (suppliers and customers, for example) and consider including a provision to the effect that their staff will not subject the employer’s staff to harassment/sexual harassment. Also ensure that the possibility of third-party harassment is addressed in relevant internal policies.
   
• Plan a rolling review of the measures put in place to evaluate their effectiveness and take any necessary remedial steps.

What about harassment by third parties (e.g. customers/clients)?

Currently, employers are not liable for failing to protect workers from third-party harassment. That is, they are not vicariously liable for harassment committed by third parties against their employees. 

The Act was originally intended to include protection against third-party harassment at work. Objections were raised to this as the legislation passed through the House of Lords and the relevant provisions were removed before the Act was passed.

Nonetheless, the wording of the Preventative Duty in the Act requires employers to “take reasonable steps to prevent sexual harassment of employees…in the course of their employment”. This is not limited to sexual harassment by other workers and is wide enough to include third parties.

The Technical Guidance is also clear that the Preventative Duty requires employers to take reasonable steps to prevent sexual harassment of workers by third parties, such as clients and customers (Paragraph 3.22).  Paragraph 3.26 of the Technical Guidance confirms that “…if an employer does not take reasonable steps to prevent sexual harassment...by third parties, the preventative duty will be breached”. 

Employers should therefore be conscious of (and take steps to prevent) the possibility of their employees being subjected to sexual harassment by third parties such as clients/customers and suppliers.   

Is the new government likely to change things?

Alongside its manifesto, the Labour Party had launched a standalone document “Labour’s Plan to Make Work Pay: Delivering A New Deal For Working People” setting out its proposed changes to work-related rights. In its manifesto, the Labour Party committed to implementing the proposals in that document in full and to passing employment legislation within its first 100 days in office. As part of its proposed changes, it indicated that it will strengthen the Preventative Duty so that employers are required to take “all reasonable steps” to prevent sexual harassment in the workplace (not just “reasonable steps”). 

This suggested amendment would mirror the wording of the defence available to employers in defending a harassment claim (any harassment claim). It is currently a defence for an employer if it can demonstrate that it took all reasonable steps to prevent the harassment in question from occurring. This is a difficult hurdle to overcome.

The Labour Party had also indicated that it would update whistleblowing protections for women who report sexual harassment at work (but did not provide further detail about what this means and how it would do so) and also that it would introduce direct protection from third party harassment.

The new Government laid before Parliament its Employment Rights Bill on 10 October 2024 and the Bill had its second reading on 21 October 2024. It is currently at the House of Commons Committee stage (where the Public Bill Committee scrutinise the Bill line by line) and the Committee is expected to report to the House of Commons by 21 January 2025.

The Employment Rights Bill purports to strengthen the Preventative Duty by amending the it so that employers are required to take “all reasonable steps” to prevent sexual harassment (as indicated above).  Further, regulations (secondary legislation) may be introduced to specify what are to be regarded as “reasonable steps” for these purposes.

Employer liability for third-party harassment (any harassment, i.e. in relation to any protected characteristic) will be introduced.  This will mean that employers may be vicariously liable in the event that a third party (client/customer, for example) subjects an employee to harassment in the course of their employment and the employer failed to take all reasonable steps to prevent that harassment.

Finally, the new Bill will also amend whistleblowing legislation to explicitly include sexual harassment as a “relevant failure” in relation to disclosures qualifying for protection.  In other words, a complaint that sexual harassment has or is likely to occur will be explicitly included as one of the disclosures which may qualify for protection under whistleblowing law. 

Please do not hesitate to contact a member of our Team if you require any assistance on the above and would like to discuss any of the issues in more detail.