Law Firms - FAQs on the new sexual harassment Preventative Duty

Employers, including law firms, now have a positive legal obligation regarding the prevention of sexual harassment of their employees in the course of their employment.  We set out below answers to the most common questions on this new duty and what it means for law firms.
 

What is the legislation underpinning the new duty and when did 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.

As an aside, the Preventative Duty is in line with the expectations of the Solicitors Regulation Authority (“SRA”) from law firms with regard to maintaining a workplace environment that upholds the highest ethical and professional values.  It also aligns with the SRA Principles which emphasise acting with integrity, in a way that encourages equality, diversity and inclusion and in a way that upholds public trust and confidence in the solicitors' profession and in legal services provided by firms. The Preventative Duty also reinforces the regulatory obligation placed on law firms under the SRA Code of Conduct for Firms, namely to treat those who work for and with them fairly and with respect and to not bully or harass them or discriminate unfairly against them. There is also a requirement on firms to ensure their employees also meet this standard.

 

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

No.

The Explanatory Notes to the Act state that “reasonable steps” depends 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 against their law firm employer 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 the Preventative Duty.

 

What are the consequences of a breach for law firm employers?

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.  Given the fact that there is no cap on the compensation that may be awarded for discrimination, an uplift could result in a substantial increase to an already significant sum.

The EHRC also has enforcement powers – direct enforcement powers - over this new duty.  An incident of sexual harassment does not need to have occurred for the EHRC to investigate an employer.  An investigation or enforcement action by the EHRC may result in significant reputational damage to an employer.

 

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.  For example, the EHRC may apply to court for an injunction to restrain an employer from committing an unlawful act.

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 law firms can refer to on this?

The Technical Guidance is the main source of guidance employers should refer to.  That guidance was initially issued in January 2020 and was updated in light of the new legislation following a short consultation process between 9 July 2024 and 6 August 2024.    

The Technical Guidance is not legally binding, but is likely to be taken into account by Employment Tribunals when deciding if an employer has complied with the Preventative Duty.

In addition, the EHRC has issued a new eight-step guide for employers on preventing sexual harassment at work, essentially summarising the information in the Technical Guidance.  The EHRC recommends that employers take the following steps (this is not an exhaustive list):

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.  Engaging staff liaison / representative groups (via fee-earner, business-support or team representatives, 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 reviewing policies, procedures, training and the formal and informal complaints made (the nature and frequency of complaints could reveal any patterns and/or wider cultural issues which would be addressed).

On 12 November 2024, the EHRC published further guidance for employers containing a checklist, action plan and monitoring logs to assist in complying with the Preventative Duty.  The checklist was originally designed for the hospitality sector, but the EHRC states that it can be adapted to suit other workplaces.  Firms can use the tool as a starter to have conversations with relevant staff about how the checklist can be used; reviewing current workplace policies and practices; and have conversations with staff to understand what steps may be taken to prevent sexual harassment.  The action plan within the guidance can be adapted and used to record any actions to be taken to make the checklist part of working practices and the monitoring log can be used to help monitor how the checklist is being used.

Separately, ACAS has updated its guidance on sexual harassment to take account of the Preventative Duty and what it entails.

Further guidance can also be found on the CIPD website (see here and here). 

Law firms should also refer to relevant guidance issued by the SRA.  In particular, the SRA’s guidance on Sexual Misconduct and Workplace Environment.

 

What can law firms do to prepare now?

The following are suggested steps law firms can consider taking in order to prepare for and comply with the new duty and demonstrate (if and when required to do so) that they have taken reasonable steps to prevent sexual harassment of their employees 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.  Firms 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.  For example, social events with or without clients or external parties where alcohol may be readily available are likely to involve a heightened risk of inappropriate behaviour taking place.  Some firms have already sought to address this by, for example, introducing a “sober chaperone” policy whereby certain partners are appointed to stay for the duration, not consume alcohol and generally ensure that inappropriate behaviour does not occur or is addressed immediately if it is.  Employees could also be involved in any risk assessment 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 firm could address them. This aligns with firms needing to monitor, identify and manage material risks to their business which is a regulatory standard to be met under the SRA Code of Conduct for Firms.
   
• Review/amend existing policies (e.g. anti-harassment policy, “speak-up” policy, social media policy, data protection policy, disciplinary and grievance procedures, 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 (via the intranet or other internal online portal, for example).
   
• Reiterate/re-issue a strong message from management to all staff about the firm’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 firm should keep a record of the training provided and who attends.  It should also be refreshed at regular intervals (annually, for example). This aligns with firms ensuring that all those working for them are competent to carry out their role, and keep their professional knowledge and skills, as well as understanding of their legal, ethical and regulatory obligations, up to date. This is a regulatory standard to be met under the SRA’s Code of Conduct for Firms.
   
• Consider having specially trained partners or 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).  Further, those with management responsibility should be provided with specific training on how to handle/respond to complaints of sexual harassment.
   
• Carry out annual staff surveys to ascertain whether employees feel confident to report incidents and, if not, ascertain why not.  This would allow firms to identify and act on any issues and also to 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 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 (clients, counsel or suppliers, for example) and consider including a provision to the effect that they/their staff will not subject the firm’s staff to harassment/sexual harassment.  Also ensure that the possibility of third-party harassment is addressed in relevant internal policies, including what employees should do if they experience sexual harassment by a third party.
   
• Plan a rolling review of the measures put in place to evaluate their effectiveness and take any necessary remedial steps.

Separately, from an SRA regulatory perspective, it is important for law firms to always have in mind their reporting obligations which are set out within the Code of Conduct for Firms, one of which is for a firm to report promptly any facts or matters of which it is aware and that it reasonably believes are capable of amounting to a serious breach of the SRA’s rules and regulations.  It may also be necessary to report matters to the police.  Most firms will already have clear reporting protocols in place, but it will be important to review those in light of any steps taken to comply with the Preventative Duty to ensure that they aligned and that any relevant protocols are incorporated within the new/updated policies and training provided.

 

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”. 

Law firms 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 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 relevant protected characteristic) will be introduced.  This will mean that employers may be vicariously liable in the event that a third party (a client, 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 Employment Team if you require any assistance on the above and would like to discuss any of the issues in more detail.

Kingsley Napley LLP