Insights

Sexual harassment in the workplace: a new duty to take ‘reasonable steps’

By EPR Law

As of 26 October 2024, employers are under a new duty to take ‘reasonable steps’ to prevent sexual harassment in the workplace, requiring them to take a far more proactive stance.

It seems timely that the new law is coming into effect as new sexual harassment allegations are being levelled against several high-profile figures.

These recent instances highlight that sexual harassment is far more prevalent than many employers may realise or acknowledge.

A Trades Union Congress (TUC) poll carried out in 2023, found that 43 per cent of the women surveyed had experienced sexual harassment on three or more occasions, with women aged between 25-34 at highest risk of being subjected to sexual harassment, bullying and abuse.

The new law requires employers to anticipate scenarios where a worker may be subject to sexual harassment and take reasonable steps to prevent it. Employers will be required to show that specific measures have been put in place to comply with the duty.

The reality is that many businesses are not ready for this change in the law. A recent survey found that only 5% of businesses would say that they are well prepared for the new legislation, while 36% of businesses were only in the early stages of preparation.

Having policies in place is a pre-requisite, but ensuring that these policies are kept updated, and guidance and training is given to all employees, especially senior stakeholders and human resources, will now be even more crucial.

The new law

The Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force on 26 October 2024.

In summary the new law:

Introduces a new duty on employers to take reasonable steps to prevent sexual harassment in the workplace, and
gives the Employment Tribunal the ability to uplift compensation by up to 25% if the employer is found to be in breach of this duty.

It is important to note that a claim for breach of the new duty will have to be part of a claim for sexual harassment (not a free-standing claim).

The duty applies to all employers regardless of size, although this will be taken into account when considering what amounts to ‘reasonable’ for the purposes of the legislation.

How will the new law work in practice?

The Equality and Human Rights Commission (EHRC) updated its sexual harassment and harassment at work technical guidance at the end of September 2024 to reflect these forthcoming changes in the law.

The updated guidance assists employers in understanding their legal obligations to take reasonable steps to prevent the sexual harassment of their workers (and will be considered by Employment Tribunals in determining liability) and provides various examples of how it applies.

An anticipatory duty

The guidance notes that the new duty placed on employers requires them to ‘anticipate scenarios when its workers may be subject to sexual harassment taking place’.

It is ‘designed to transform workplace cultures by requiring employers to take positive and proactive reasonable steps to prevent sexual harassment of their workers.’

The guidance notes that if the sexual harassment has already taken place, the preventative duty requires an employer to take steps to prevent the sexual harassment from happening again.

The duty extends to taking reasonable steps to preventing sexual harassment by third parties, such as customers or service users as well as members of the public. However, a worker cannot bring a stand-alone claim for third party harassment.

Reasonable steps:

The new law requires employers to put reasonable steps in place to proactively prevent sexual harassment from arising. If faced with an allegation of sexual harassment, employers will need to demonstrate the specific measure that have been put in place to comply with this new duty.

The guidance notes that whether the employer has taken reasonable steps will depend on individual facts and circumstances.

When is a step ‘reasonable’?

The guidance lists a number of factors which will determine the reasonableness of a step. These include:

The size and resources of the employer
The nature of the working environment
The sector it operates in
The risks present in the workplace

What to do now?

Updating risk assessments, reviewing policies and procedures and ensuring regular training sessions take place is a pre-requisite to ensuring compliance with the new law.

The EHRC guidance specifically states that an employer is unlikely to be able to meet the preventative duty to take reasonable steps if they fail to carry out a risk assessment.

But a cultural or mindset shift also needs to take place, addressing known and potential risk factors, raising awareness, monitoring and enforcement.

The guidance highlights the important role that management play in creating the right workplace environment free of harassment. It notes that they should ‘role model respectful behaviour and visibly promote a positive and inclusive workplace culture where harassment is taken seriously and not tolerated.’

The EHRC has helpfully published an 8-step guide to illustrate the types of action that could be taken to prevent and deal with sexual harassment in the workplace.

In summary it recommends:

Developing an anti-harassment policy
Engaging staff through surveys and exit interviews, as well as operating an open-door policy
Assessing and taking steps to reduce risk in the workplace
Considering the use of a reporting system that allows workers to raise issues anonymously or in name
Training for workers, including senior stakeholders, on what sexual harassment in the workplace looks like, and how to handle complaints
What to do if a harassment complaint is made
Dealing with harassment by third parties
Monitoring and evaluating the actions taken to prevent sexual harassment.

Employers will now be required to fully engage in preventing sexual harassment.

Going forward, the new government has promised enhancing workers’ rights still further, but we are yet to know the detail of this. In the meantime, the Employment Tribunals (and its appellate courts) will play a key role in interpreting the parameters of the new duty.

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