The new duty to prevent sexual harassment – what employers need to know

From 26 October 2024, employers are under a new obligation to take reasonable steps to prevent sexual harassment of their workers. In this update, we look at that new duty and what employers can do to prepare.

Useful resources

In preparing for the new duty, you may find the following resources useful:

• Sexual harassment and harassment at work: technical guidance: produced by the Equality and Human Rights Commission (EHRC) in 2020, this guidance has since been updated to reflect the new duty. This comprehensive guidance includes case studies and examples to assist you in understanding the legal framework and your legal obligations around harassment (and sexual harassment) as an employer. The guidance also includes details about how the new duty will work in practice. We consider some of the additions and amendments to the updated guidance in this blog post.
• Employer 8-step guide: Preventing sexual harassment at work: in addition to the technical guidance, the EHRC has also produced this shorter guide for employers.
• Five key things you need to know about the new sexual harassment duty: for an overview of the duty and five key things that you need to know about it, check out this video from our senior associate Huw Cooke.

Overview of the new duty

To encourage employers to be more proactive in their efforts to reduce workplace sexual harassment, Parliament passed The Worker Protection (Amendment of Equality Act) Act 2023. This Act introduced a new, positive obligation on employers to take ‘reasonable steps’ to prevent sexual harassment of their workers in the course of their employment. This new duty, which comes into force on 26 October, applies regardless of whether, as an employer, you have experienced complaints of sexual harassment. Anticipatory in its application, under the new duty you are required to anticipate scenarios when your workers may be subject to sexual harassment in the course of their employment and take pre-emptive action to prevent harassment from taking place.

The duty is an ongoing one and compliance is not a one-off process. Regular assessment of possible risks, taking steps where incidents of sexual harassment have happened and considering whether additional steps are needed to comply with the duty will all form part of an effective approach to preventing sexual harassment. We explore the risk assessment process in more detail below.

There are a few important points to note when considering the breadth of the duty:

• It applies to sexual harassment as defined in the Equality Act – the new duty incorporates several key concepts and definitions from existing Equality Act 2010 provisions. This includes the definition of sexual harassment, namely ‘unwanted conduct of a sexual nature’ which has the purpose or effect of ‘violating [the worker’s] dignity’ or ‘creating an intimidating, hostile, degrading, humiliating or offensive environment for [the worker]’.
• The duty extends to workers – although the duty applies to ‘employees’, it covers most ‘workers’ as well because ‘employee’ has an extended definition in the legislation. Employers therefore need to take steps to prevent sexual harassment of employees and workers. For ease, we refer to ‘workers’ throughout this update.
• You need to take steps to prevent harassment of your workers from third parties – as well as preventing the sexual harassment of one worker by another, the EHRC’s technical guidance makes clear that the duty also extends to the need to take steps to prevent sexual harassment by third parties. Third parties may include clients, customers, contractors, visitors to the workplace etc.

What are the consequences of non-compliance?

While a worker cannot bring a standalone claim if their employer fails to take reasonable steps to prevent sexual harassment, there remain important consequences. Where a worker successfully brings an employment tribunal claim for harassment involving sexual harassment, any compensation awarded could be uplifted by up to 25% if the tribunal finds that the employer failed to take reasonable steps to prevent sexual harassment. The uplift can be applied to all compensation awarded to the worker under the Equality Act, not just to the compensation awarded for the sexual harassment itself. This could result in a substantial increase.

In addition, the EHRC can take enforcement action against an employer who fails to take reasonable steps. These enforcement powers apply whether or not an incident of sexual harassment has taken place.

There is also, of course, the additional risk of reputational fallout. In a tough and competitive economic climate, how your organisation is perceived by the world at large is key. For employers operating in regulated sectors reputational risk weighs particularly heavily, and there are additional considerations for such employers to take into account based on the regulatory standards that they are subject to (something which is reflected in the technical guidance, as we mention below).

What are ‘reasonable steps’?

There is no prescribed list of reasonable steps. Whether reasonable steps have been taken will be an objective test and will depend on the facts and circumstances of each situation. This means that reasonable steps will vary from employer to employer. A step may be reasonable, even if it would not have prevented a particular act of sexual harassment.

The technical guidance sets out various examples of what may be considered reasonable in different situations and sets out factors that may be relevant when assessing whether a step is reasonable. These factors include (but are not limited to):

• the size and resources of the employer;
• the nature of the working environment;
• the sector the employer operates in;
• the risks present in that workplace;
• the nature of any contact with third parties, for example, type of third party, frequency, environment;
• the likely effect of taking a particular step and whether an alternative step could be more effective;
• the time, cost and potential disruption of taking a particular step, weighed against the benefit it could achieve;
• whether concerns have been raised with an employer that sexual harassment has taken place (it would likely be reasonable for the employer to take steps to investigate and ensure it does not happen again);
• compliance with any relevant regulatory standards (for example, standards set by the Financial Conduct Authority or General Medical Council); and
• whether steps taken appear to have been effective or ineffective, for example, if a further incident of sexual harassment occurs after steps have been taken, this may indicate that additional and / or alternative action should be considered.

How can you comply with the new duty?

As an employer, you are already likely to have some steps in place to prevent sexual harassment. For example, you may have an anti-harassment policy, regular equality and diversity training and a reporting mechanism through which concerns can be raised. Those steps alone, however, are unlikely to be sufficient to demonstrate compliance with the new duty. Indeed, it is clear that the EHRC will expect all employers to identify some additional, concrete practical steps they need to take in order to comply with the new duty. It is important that you formally assess the risks, through a risk assessment, and from there decide on any additional steps you may need to introduce.

The EHRC’s technical guidance provides comprehensive advice on the process that employers should follow to identify reasonable steps to take. In addition, its Employer 8-step guide is a really useful starting point as it provides a succinct and helpful framework for employers, and highlights some of the key points that employers need to action in order to comply with the new duty.

Every employer’s situation will be different, a fact that is reflected in the technical guidance, and it is therefore important that you consider your organisation’s circumstances specifically. Whilst that analysis has to be done at an organisation level, there are actions identified in the technical guidance that will apply to all organisations:

1. Carry out (and maintain) a risk assessment

It is clear from the technical guidance that in order to comply with the new duty you will need to carry out a risk assessment – indeed the guidance goes as far as saying that employers are ‘unlikely to be able to comply with the preventative duty’ if they have not carried out a risk assessment.

Whilst you might not have formally assessed the risk of sexual harassment before, your existing frameworks for assessing other risks (for example, health and safety risks), should help inform how you can complete a risk assessment focussed on sexual harassment risks. Remember also that, within your organisation, different risks may arise from site to site, project to project and from department to department.

Using the findings from your risk assessment, you can then identify any additional reasonable steps to those which you already have in place, and which may reduce the risk of sexual harassment.

The technical guidance suggests the following approach to your risk assessment:

1. Consider the risks of sexual harassment occurring in the course of employment;
2. Consider what steps can be taken to reduce those risks and prevent sexual harassment of workers;
3. Consider which steps would be reasonable to take; and
4. Implement the reasonable steps.

You may need to engage with departments across your business to identify the risks. For example, it is likely that the IT department will need to be involved to help identify risks that might arise through the inappropriate use of your IT systems and advise on what (additional) steps could be taken to prevent this. You will also need to liaise with managers in operational teams to identify the risks that workers may face by virtue of their role and/ or working arrangements.

Engaging with your workers will be a key part of compliance (see below). When considering what practical steps to take to mitigate the risks, you may want to present proposals to employee networks and/or recognised trade unions (if you have them). This allows you to take account of their feedback and recommendations and to canvass views on the proposals, which, in turn, should encourage worker buy-in and foster a positive culture.

As we noted above, the duty is an ongoing duty – carrying out a one-off risk assessment will not be enough to demonstrate ongoing compliance. Once you have completed it, the risk assessment should then be a live document, with clearly documented ownership and a process for monitoring and reviewing. 

2. Prepare an action plan

The technical guidance explains that employers should develop an action plan setting out the preventative steps they will take to address the risks, and how those steps will be monitored. The guidance also encourages employers to consider publishing these action plans to workers and the general public (for example, by putting it on their website).

Your risk assessment will help you to determine and inform what the action plan should include. That said, the assessment may go into detail which is not suitable to include in an action plan.

Your action plan should also explain how the effectiveness of your reasonable steps will be monitored. You will also want to be able to demonstrate monitoring does in fact take place. It will be sensible to appoint a designated lead to take overall responsibility for the risk assessment and the action plan.

3. Have the right policies, procedures and training in place

The technical guidance makes clear that employers will be expected to have ‘effective and well communicated policies…which aim to prevent harassment and victimisation’.

One of the questions which employers have been wrangling with is whether they need to have a standalone sexual harassment policy. Whilst the guidance makes it clear that organisations should not conflate different forms of harassment, it also confirms that employers can choose whether to have a standalone policy dealing with sexual harassment or to have one anti-harassment policy which covers all forms of harassment, but which clearly addresses sexual harassment, for example, in a separate section.

The technical guidance provides detailed and prescriptive guidance on what a good anti-harassment policy should cover. Whilst your policy needs to be tailored to your organisation’s circumstances, it will be sensible to review your policy against what is set out in the technical guidance to ensure you have covered all the identified points. One of the points your policy will need to include is a clear procedure for receiving and responding to complaints of sexual harassment, and you will need to ensure that this is an effective procedure which is not too restrictive (for example, you should provide a range of reporting channels that workers can choose from).

Again, remember that workers should have the opportunity to share their views on your anti-harassment policy. You should seek input from your recognised trade union (if relevant), employee-led networks or other worker representatives.

Once complete or updated, you will also need to make sure that your policy is effectively communicated to the workforce in a range of ways. For example, it will be important to signpost the policy as part of anti-harassment training in your diversity and inclusion programme and refresher training sessions (which you should also be carefully reviewing in light of the new duty).

4. Communication and ongoing engagement with workers

It is important to consider the messaging that goes out to staff, and potentially client / supplier contacts, in respect of the organisation’s position on preventing sexual harassment.

The greater the consistency of messaging throughout the employment lifecycle (including at the recruitment stage), the lower the exposure to risk, especially where messaging is reinforced by managerial behaviours and staff training at appropriately regular intervals.

It is also clear from the technical guidance and the 8-step guide that it will be important for employers to engage with their workforce to help understand where any potential issues lie and whether the steps they are taking are working. For example, employers should avoid making assumptions about the extent to which sexual harassment may be a problem within their workforces. Simply because you have not had a complaint raised does not mean that sexual harassment is not occurring so clarify the position by seeking your workers’ views and experiences through staff surveys, exit interviews, 1-2-1s, staff networks or employee for a and your usual methods of seeking feedback. 

You should also make sure that all workers are aware of your anti-harassment policies and the consequences of breaching them and, importantly, how they can report any incidents of sexual harassment.

More change on the way

Just as employers are grappling with the new duty ahead of the 26 October implementation date, on 10 October the new government published amendments in the Employment Rights Bill that would significantly alter employers’ obligations to prevent sexual harassment and the potential consequences of breach.

If implemented, the Bill would:

• amend the scope of the preventative duty to provide that employers must take ‘all reasonable steps’ to prevent sexual harassment of their workers (rather than simply ‘reasonable steps’). This would bring the wording of the duty in line with that of the ‘statutory defence’ available to employers where they would otherwise be liable for discriminatory acts committed by their employees. If the change is implemented, the EHRC and employment tribunals are likely to have regard to the case law on the statutory defence when deciding whether the amended duty has been complied with – this case law makes clear that ‘all reasonable steps’ is a high threshold;
• grant the Secretary of State powers to specify certain steps that will be regarded as ‘reasonable’ (such as risk assessments) and to require employers to ‘have regard’ to certain matters when taking those steps;
• broaden the definition of ‘protected disclosure’ in existing whistleblowing protections to include a disclosure that ‘sexual harassment has occurred, is occurring or is likely to occur’. This would mean that a worker raising an allegation of sexual harassment would be covered by whistleblowing protections preventing them from being subjected to a detriment or being dismissed as a result of the allegation; and
• introduce a new third party harassment claim in the Equality Act, allowing workers to bring a claim against their employer where they are harassed by a third party in the course of their employment and the employer failed to take all reasonable steps to prevent the third-party harassment. As currently drafted, this new claim would not be limited to sexual harassment by third parties and instead would cover all types of harassment carried out by third parties.

The first and last points (or a version of the last point) were both originally intended to form part of the Worker Protection (Amendment of Equality Act) Act 2023 but were taken out of that Act as it made its way through Parliament. Given the significant impact the changes could have, employers will need to keep a close eye on the progress of these points as the Bill progresses in the coming months.

How can we help?

The new duty imposes significant obligations on employers. Organisations with a known issue of sexual harassment may decide to use the new duty as an opportunity to effect change in their organisation’s culture and will, therefore, want to invest significant time and resource in their risk assessment, staff engagement, action plan and consequent steps. However other organisations who are confident that they have a healthier workplace culture may face lower risks and can respond accordingly. We are advising employers across a wide range of sectors on how they can comply with the new duty. If you would like to discuss the steps your organisation should be taking in relation to the new duty, then please contact Katherine Flower or another member of our Employment Team.

Disclaimer: This update gives general information only and is not intended to be exhaustive. Although we have taken care over the information, you should not rely on it as legal advice. We do not accept any liability to anyone who does rely on its contents.