Be prepared: A new duty on employers to prevent sexual harassment

By Senior Associate, Claire Hollins.

From October 2024 employers will be under a new duty to prevent sexual harassment in the workplace.

The Worker Protection (Amendment of Equality Act 2010) Act 2023 inserts a new section into the Equality Act 2010 that will require employers to take reasonable steps to prevent the sexual harassment of employees during the course of their employment.

Sexual harassment is defined in the Equality Act as 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. Examples of this would include sexual comments, sexual jokes, leering, propositions/sexual advances, explicit emails and unwanted touching.

Employers can already be liable for claims of sexual harassment and less favourable treatment because an employee has rejected, or submitted to, conduct of a sexual nature. This includes liability for sexual harassment carried out by employees in course of their employment even where the employer has not approved or been aware of the conduct. However, employers may have a defence against a claim where they can show that they took all reasonable steps to prevent the harassing employee from acting unlawfully.

Whilst the 2023 Act will not create a new standalone claim, where an Employment Tribunal determines that a claim for sexual harassment is well founded, it will then go onto consider whether the new duty has also been breached. Where it finds that an employer has breached the new duty, the Tribunal can increase any compensation awarded by up to 25%. When you consider that compensation for claims of sexual harassment is uncapped, this significantly increases the potential liability.

What should employer’s do now?

At present it is unclear what a Tribunal might consider to be a reasonable step. The explanatory notes to the 2023 Act suggest that reasonable steps will depend on the specific circumstances of the employer which will include its size and sector. This means that larger organisations are going to be expected to do more than smaller ones.

The Equality and Human Rights Commission has also indicated that it will update its technical guidance on sexual harassment to reflect the new duty but this has not yet been published.

Given employers can already defend a claim for sexual harassment on the basis that they took all reasonable steps to prevent it, it is likely that Tribunals will have regard to those steps when looking at whether an employer has complied with the new duty.

As such, in preparation for the change employers should:

• Review and update (or if nothing is in place now, implement) their anti-harassment policy;
• Ensure that there is a clear procedure for reporting complaints and concerns, that this is published and known;
• Maintain records of complaints and actions taken;
• Train employees (and regularly repeat the training) about sexual harassment, their obligations, the employers expectations and what to do if they are harassed or witness harassment;
• Train managers in dealing with and investigating complaints;
• Consider how to protect employees who deal with customers or clients or other third parties from harassment by them and how such complaints will be dealt with (although there is no direct liability for harassment by third parties)

We can help you to put in place appropriate policies for your organisation. We also offer a comprehensive and bespoke training package. Please get in touch with a member of the team or call 0161 832 3434 if this is something we can help you with.