UK Employers’ New Duty to Prevent Sexual Harassment: Are You Ready?

Employers have a new duty to take reasonable steps to prevent sexual harassment of employees in the course of their employment under the Worker Protection (Amendment of Equality Act 2010) Act 2023 (the Act). After receiving Royal Assent on 26 October 2023, the duty comes into force on 26 October 2024—so employers should take steps now to ensure they are ready to comply.

WHAT IS THE NEW DUTY?

The new positive duty to take reasonable steps to prevent sexual harassment builds on existing protections under the Equality Act 2010, reflecting the development of attitudes across the globe following the #MeToo movement and publication of reports from the Equality and Human Rights Commission (EHRC) and the Women and Equalities Committee, for example.

The duty is anticipatory. It requires employers to take reasonable steps to prevent 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.

Currently, sexual harassment is prohibited under the Equality Act 2010. Employers will be liable for harassment committed by their workers in the course of employment, but they will have a defence if they can show that they took “all reasonable steps” to prevent the harassment. The new duty goes further to impose a positive legal obligation on employers to prevent sexual harassment from happening in the first place.

And, notably, although employers are not liable under the Act for sexual harassment committed by third parties (such as clients or customers), the EHRC has recently consulted on certain proposed updates to its 2020 technical guidance on sexual harassment, including a number of updates related to third-party harassment. The draft guidance (which is intended to be in place before the Act comes into force) suggests that the new duty will require employers to take reasonable steps to prevent sexual harassment of employees by third parties as well as by their own workers.

The new preventative duty applies to sexual harassment only, and not harassment on the basis of other protected characteristics under the Equality Act 2010, therefore gold-plating protections from sexual harassment.

The EHRC has confirmed that whether particular steps taken to prevent sexual harassment will be considered “reasonable” will vary from employer to employer and will depend on factors such as size, nature and resource. The test for reasonable steps is objective and depends on the specific set of facts and circumstances in each situation. The EHRC draft technical guidance on sexual harassment also includes additional detail and illustrative examples on the meaning of “reasonable steps.”

WHAT DOES IT MEAN FOR EMPLOYEES?

This new duty does not create a new cause of action for individuals. If their complaint of sexual harassment is upheld by an employment tribunal, a breach of this duty can be considered by the tribunal and compensation awarded to the employee increased by up to 25%.

Additionally, the EHRC has the power to take enforcement action against employers. For example, it can investigate, enter into agreements with employers to address issues, and require action plans for addressing sexual harassment in the workplace. In some instances, the EHRC will be able to ask the court for an injunction to restrain an employer from committing an unlawful act.

WHAT DOES IT MEAN FOR EMPLOYERS?

Many employers are likely already taking steps to mitigate the risk of sexual harassment in their workplace. In light of the new duty, employers should continue to review and develop these areas:

• Anti-harassment policy: Create or evaluate and update anti-harassment policies and consider how these interact with other policies that are in place. These policies should be communicated to workers clearly, implemented effectively and be a public commitment to zero tolerance.
• Reporting procedures: Ensure that there are clear procedures for reporting complaints of sexual harassment. Confirm that workers are aware of this, and how such procedures would work in practice, including any support offered to complainants.
• Training: Implement training on sexual harassment, including refresher sessions. Ensure specialists are trained to advise those considering making a sexual harassment complaint.
• Investigation: Ensure that any complaints raised by workers are investigated properly, and appropriate action is taken where wrongdoing is found.
• Risk assessments: Carry out risk assessments to consider the relevant risk factors in order to determine what actions can be taken to minimise the risk of sexual harassment in the workplace.
• Monitoring the effectiveness of policies and procedures: Ensure that there is a process to track the effectiveness of policies and procedures, including keeping accurate records of sexual harassment complaints.
• Third-party harassment: Do not ignore the issue of third-party sexual harassment, and ensure that this risk is considered and addressed in any internal policies, procedures (including reporting or complaints procedures), trainings, risk assessments, and other similar measures