The Equality and Human Rights Commission (EHRC) has published a consultation seeking opinions on its proposed new guidance on the duty of employers to take reasonable steps to protect their workers from sexual harassment. This new duty is due to be introduced on 26 October 2024, and responses to the consultation are due by 6 August 2024.
From 26 October, where the duty to take reasonable steps to prevent sexual harassment has been breached by employers, the EHRC will be able to take action against those employers. Employment tribunals will also be able to increase compensation for sexual harassment by up to 25%.
This blog explains this new duty, as well as helping you with some practical tips to protect your workers from sexual and other types of harassment.
What is the new duty to prevent sexual harassment at work?
The Worker Protection (Amendment of Equality Act 2010) Act 2023 was passed into law last year and is due to come into force on 26 October 2024. It places a new positive duty on employers to take reasonable steps to prevent sexual harassment of employees in the course of their employment. Failing to do so could incur penalties and enforcement action against the employer.
Sexual harassment is unwanted conduct of a sexual nature which has the purpose or effect of:
- violating a worker’s dignity; or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for that worker.
How this differs from the current law
As the law currently stands, employers are liable for sexual harassment committed by their workers in the course of their employment, but have a defence if they can show they took all reasonable steps to prevent the harassment. The new duty goes a step further, creating a positive legal obligation on employers to take reasonable steps to prevent sexual harassment.
Why is the EHRC consulting about the new duty?
The EHRC will have enforcement powers in relation to the new duty, and has published draft guidance outlining how employers may comply and what their obligations are. It is seeking views through a public consultation, in order to gather opinions from a variety of stakeholders who may be affected by the guidance.
Although the draft guidance is subject to change, key points around the enforcement of the new duty include:
- Employers should not wait until there is an incident of sexual harassment before taking action – they must anticipate potential scenarios where a worker may be at risk of sexual harassment and take steps to prevent such harassment taking place.
- The preventative duty requires employers to take reasonable steps to prevent sexual harassment by not only their own workers, but also by third parties such as clients, agents of the employer and customers.
- The duty only applies to sexual harassment during the course of employment.
Interestingly, as mentioned above the EHRC guidance states that employers must take reasonable steps to prevent sexual harassment against employees by third parties. This requirement is not specifically set out in the legislation (in fact, it was removed following debate in the House of Lords). As currently drafted, the EHRC guidance says that the EHRC may use its enforcement powers to take action against employers who don’t take preventative steps to protect employees from third-party harassment. However, it is unclear whether that employee would have a freestanding claim in an employment tribunal for sexual harassment by third parties. Watch this space!
What are reasonable steps to prevent sexual harassment?
What reasonable steps to prevent sexual harassment in the workplace are will depend on a number of factors, including the employer’s size and resources, the industry it operates in, the working environment and risks present, and the type and frequency of third parties that a worker might come into contact with. The EHRC has pointed out that there are no set criteria or steps that an employer must take, but it should:
- Consider the risks of sexual harassment in the workplace
- Consider what steps it could take to reduce those risks
- Consider which of those steps are reasonable to take
- Implement those steps.
Some examples of reasonable steps include:
- Having a comprehensive anti-harassment policy in place and reviewing it annually
- Publishing anti-harassment policies in an easily accessible place and making them freely available to all workers
- Making staff aware of any changes to the policy and evaluating the effectiveness of the policy (eg by conducting staff surveys and exit interviews, and/or analysing past trends)
- Giving staff opportunities to raise issues with them regularly (eg through one-to-ones or open-door policies)
- Considering introducing an online or externally run telephone reporting system to allow staff to make complaints
- Providing proper training on what harassment is and how to handle complaints
- Conducting a risk assessment to identify who may be at higher risk of harassment and/or be less likely to report harassment
- Checking that where staff are put on secondment, the other employer has appropriate procedures in place to prevent sexual harassment.
What enforcement powers will the EHRC have?
The EHRC’s draft guidance sets out a number of steps it may take to enforce breaches of duty by employers. These include:
- Investigation of the employer;
- Requiring the employer to prepare an action plan and remedy any continuing breaches;
- Entering into a formal agreement with an employer to stop future breaches of the duty; and/or
- Applying for an injunction to stop the employer committing further breaches of the duty.
Your employee can’t bring a claim against you solely for breaching this duty – their claim must be attached to a claim of sexual harassment against them. However, if they are successful in their sexual harassment claim and you are also found to have breached your duty to prevent the sexual harassment, their compensation can be increased by up to 25%.
The employment tribunal will look at the extent to which you breached the duty when determining the level of compensation, so you should keep a record of what steps you took to prevent harassment.
As an employer, it’s important that you are aware of this new duty and take reasonable steps to prevent sexual harassment in your workplace. This will help to protect your staff as well as to maintain your business’s reputation and reduce the risk of you needing to deal with personal grievances or investigations against your business.
The content in this article is up to date at the date of publishing. The information provided is intended only for information purposes, and is not for the purpose of providing legal advice. Sparqa Legal’s Terms of Use apply.
Marion joined Sparqa Legal as a Senior Legal Editor in 2018. She previously worked as a corporate/commercial lawyer for five years at one of New Zealand’s leading law firms, Kensington Swan (now Dentons Kensington Swan), and as an in-house legal consultant for a UK tech company. Marion regularly writes for Sparqa’s blog, contributing across its commercial, IP and health and safety law content.