Sexual harassment in the workplace: New duty on employers
As of 26 October 2024, there is a new duty on employers to take reasonable steps to prevent sexual harassment of their workers in the course of their employment. This duty derives from the Worker Protection (Amendment of Equality Act 2010) Act 2023 (the Act). The Equality and Human Rights Commission (EHRC) has updated its technical guidance in relation to sexual harassment at work (the Guidance) to assist employers in complying with this new duty. Not only are employers now required to prevent sexual harassment by their own workers, but the duty also extends to preventing such harassment from third parties. This could include, for example, by clients, customers, or patients of the employer.
The preventative duty requires employers to adopt a proactive rather than a purely reactive approach. Employers must therefore take action to prevent situations in which their workers may be subject to such harassment. If sexual harassment has taken place, the employer must then comply with the preventative duty by taking steps to ensure this does not happen again.
Prior to the introduction of this duty, the position was that employers could be liable for the acts of sexual harassment committed by their employees and although they could use the “all reasonable steps” defence, there was no such proactive onus on employers to protect employees from sexual harassment. This represents a major shift in the law and attitudes towards the cultural workplace environment.
What is sexual harassment and when does the duty arise?
The meaning of sexual harassment is contained in section 26(2) of the Equality Act 2010, namely unwanted conduct of a sexual nature where the conduct has the purpose or effect of violating an individual’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual.
The duty arises in relation to a worker in the course of employment. This can cover a wide range of circumstances, encompassing the more obvious situation of the worker in the workplace, and extending to any other places they are required to work. This could include working from home, working in another office, attending external meetings, or attending training in relation to their employment.[1]
What reasonable steps must an employer take?
What constitutes reasonable steps is not set out in the Act, however the Guidance assists in establishing how to comply with this duty. The Guidance emphasises the lack of a prescribed minimum as to what an employer can do to meet the required standard.[2] Therefore, whether an employer has taken the necessary reasonable steps will be objective and will vary according to the characteristics of the employer. It is important that employers understand the duty is ongoing and it must be continuously reviewed and monitored. Factors employers should consider in deciding whether a step is reasonable include:
- The size and resources of the employer;
- The nature of the workplace and the sector of the employment;
- The risks present in the workplace;
- The time and cost of implementing the steps;
- Any concerns raised by workers that sexual harassment has or may have taken place; and
- The likely effect of implementing the steps.
The guidance has also set out an 8-step guide on how employers should prevent sexual harassment at work:
- Develop an effective anti-harassment policy
- Engage your staff
- Assess and take steps to reduce risk in your workplace
- Reporting
- Training
- What to do when a harassment complaint is made
- Dealing with harassment by third parties
- Monitor and evaluate your actions
Examples of steps an employer could take when following these 8 steps include conducting regular 1-2-1’s with staff, ensuring all workers are aware of their protections and how to report sexual harassment, having a clear and effective reporting system in place, training managers on preventing and responding to sexual harassment in the workplace, and regularly monitoring the effectiveness of the steps the employer has implemented.
What are the consequences of a breach of the duty?
The EHRC has the power to take enforcement action against an employer who breaches the preventative duty by failing to take reasonable steps to prevent sexual harassment of its workers. As set out in the Guidance of the EHRC, these enforcement powers are held under the Equality Act 2006 and include:
- Investigating an employer;
- Issuing an unlawful act notice if the employer is, or has been, the subject of an investigation confirming they have breached the Act and requiring an action plan setting out how the employer will remedy any continuing breach and prevent future breaches;
- Entering a formal, legally binding agreement with an employer to prevent future unlawful acts; and
- Asking the court for an injunction to restrain an employer from committing an unlawful act.[3]
Importantly, the above enforcement actions are not only actionable upon an incident of sexual harassment having taking place, but the EHRC can take such action if they suspect the duty has not been complied with.[4]
Although a worker cannot bring a standalone claim against their employer for a breach of the preventative duty, the Act does give tribunals the power to add an uplift of up to 25% on discrimination compensation in a successful claim for sexual harassment where an employer has breached the duty. If ordering the compensation uplift, the tribunal must have consideration as to the extent to which the employer has not complied with this duty, which must then be reflected in the percentage uplift.
For the background on the introduction of the new duty, see our article from July 2021 in relation to the government’s response to the consultation on Sexual Harassment in the Workplace, leading to The Worker Protection (Amendment of Equality Act 2010) Act 2023: Sexual Harassment in the Workplace consultation: government response
Contact us
Jemima Webber is a solicitor apprentice in our employment law team. If you have any questions or concerns related to the points raised in this article, or have an employment law query we can help with, please get in touch.
References
[1] https://www.equalityhumanrights.com/guidance/sexual-harassment-and-harassment-work-technical-guidance#the-preventative-duty
[2] 4.7 EHRC – Sexual harassment and harassment at work: technical guidance Sexual harassment and harassment at work: technical guidance | EHRC
[3] https://www.equalityhumanrights.com/guidance/sexual-harassment-and-harassment-work-technical-guidance#the-preventative-duty
[4] https://www.equalityhumanrights.com/guidance/sexual-harassment-and-harassment-work-technical-guidance#the-preventative-duty