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

From 26 October 2024, employers will be under a new legal obligation to take positive steps to prevent sexual harassment at work.

In this blog, we will look at what’s changing and what steps employers should take to ensure they are fulfilling their new obligation.

Overview of the new duty

The Worker Protection (Amendment of Equality Act) Act 2023 introduced a new, positive obligation on employers to take ‘reasonable steps’ to prevent sexual harassment in the workplace. The obligation is designed to ensure that employers not only react once incidents have taken place, but take pre-emptive action to stop them from occurring.

The new duty requires employers to implement policies, training, and systems aimed at preventing sexual harassment before it occurs. Employers can be held liable for harassment committed by their employees if they fail to take reasonable steps to prevent it.

It will be essential for employers to review and update existing anti-harassment policies, ensure that all employees are trained on the policies and put in place effective processes for handling complaints. Employers may also be liable for harassment committed by third parties, including clients, customers, contractors, or visitors to the workplace.

What are ‘reasonable steps’?

There is no finite list of what constitutes ‘reasonable steps’ to be taken by an employer. What is reasonable will vary from employer to employer. The test to determine whether reasonable steps have been taken will be an objective one and depend on the individual facts and circumstances of each situation.

The Equality and Human Rights Commission published technical guidance for employers on preventing sexual harassment at work. The EHRC guidance sets out some examples of steps employers should take to meet this new legal duty. Although the list is not exhaustive, the examples included are:

• Developing, communicating and enforcing effective anti-harassment policies, which also address third party harassment;
• Conducting risk assessments to identify potential sexual harassment risk factors, for example, where there are power imbalances, if staff socialise together outside of work, or if staff engage in crude or disrespectful behaviour at work;
• Regularly providing meaningful training for staff and managers on what sexual harassment in the workplace looks like, what to do if they experience or witness it, and how to handle any complaints of harassment;
• Reviewing grievance and disciplinary processes and monitoring these;
• Ensuring prompt and thorough investigations by suitably trained managers;
• Implementing measures to prevent third-party harassment, for example by putting reporting mechanisms in place or assessing high-risk workplaces where staff may be left alone with a third party;
• Taking appropriate actions based on findings, for example, reviewing complaints data to see if there are any trends or particular issues and taking appropriate actions to tackle this;
• Cultivating a supportive workplace culture with a zero-tolerance approach to sexual harassment, for example by training colleagues to stand up for each other in the workplace; and
• Establishing clear reporting procedures, providing a range of options for reporting, such as an online or telephone-based service that allows workers to raise an issue either anonymously or in name.

These steps will help employers to ensure compliance and maintain a respectful work environment.

The key takeaway from employers here is to be proactive and not reactive.

What are the consequences of non-compliance?

Whilst employees have long been able to bring claims for sexual harassment to Employment Tribunals, it is likely that we will see an increase in Employment Tribunal claims following the implementation of this new law if companies fail to comply with their new duties.

Tribunals will now have the power to (1) award compensation not only for actual harassment, but also for failing to take preventative steps and (2) impose fines on employers if they are found to have ignored the new legal duty.

The new law provides that if any employer fails to comply, they may face a 25% uplift to compensation by the Tribunal.

How can Gilson Gray help?

The new duty imposes significant obligations on employers. Our Employment team can help you proactively prevent harassment issues by drafting and amending policies and delivering bespoke training sessions.

Our team can also work with you to ensure any complaint of harassment raised by your employees are dealt with appropriately, protecting you and your employees.

For further guidance on how these changes may impact your business and information on our training packages and employment law advice, get in touch with our employment law team, Graham Millar (gmillar@gilsongray.co.uk), Stuart Robertson (srobertson@gilsongray.co.uk) or Ava Cadenhead (acadenhead@gilsongray.co.uk).

The information and opinions contained in this blog are for information only.  They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice.  Before acting on any information contained in this blog, please seek solicitor’s advice from Gilson Gray.