A new statutory duty guide for employers to prevent sexual harassment in the workplace

A new duty on employers to take appropriate measures to prevent sexual harassment is imminent. What do businesses need to do to prepare?

From 26 October 2024, employers will be under a new duty to take appropriate measures to prevent sexual harassment of their employees. This new preventive duty is contained in the Employment Protection (Equality Amendment Act 2010) Act 2023.

The preventive duty only relates to sexual harassment and not the other “protected features” included in the Equality Act 2010. It adds to the existing protections against discrimination, harassment and victimization contained in that Act.

On 26 September 2024, the Equality and Human Rights Commission (EHRC) published updated Technical Guidance for employers and an 8-step guide for Employers: Preventing sexual harassment at work that must be addressed.

What is sexual harassment?

The Equality Act 2010 defines this as unwanted behavior 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 them.

Examples include inappropriate physical contact, sexual jokes or comments, sexual advice, sending sexually explicit emails/texts and displaying sexually explicit images.

What is preventive work?

The guide describes it as “good and effective work designed to change workplace cultures”.

• Employers should anticipate situations where their employees may be sexually harassed during their employment and take steps to prevent it.
• Once sexual harassment has occurred, employers must take steps to prevent it from happening again.
• The preventive duty applies to third-party harassment (unlike the Equality Act 2010) from, for example, clients, customers, service users, or members of the public.
• One cannot bring an independent claim for breach of the duty of prevention itself, but where there has been a breach, this can affect the amount of compensation, which is considered below.

Reasonable steps

The guidance makes it clear that there is no prescribed minimum. Eligibility will vary from employer to employer, and relevant factors include:

• Employer size, resources and sector
• Hazards in that workplace
• Contact third parties
• The likely impact of taking a particular action and whether another action would be more effective
• The time, cost and possible disruption of a particular step are weighed against the benefit

Factors to consider in risk assessment

Notably, the Guidance states that employers are unlikely to be able to meet the preventive duty if they do not carry out a risk assessment.

It is not a static activity, and employers should review their preventive measures regularly.

The guidance refers to various risk factors that may increase the risk of sexual harassment at work, and these include:

• The staff is predominantly male
• A workplace culture that condones profanity/sexual “slurs”.
• Gender power imbalance
• Working alone or alone
• Workplaces that allow the consumption of alcohol
• Part-time workers
• There are no policies or procedures in place to deal with sexual harassment

Consequences of breach of new duty

If the employee succeeds in filing a claim for sexual harassment and compensation is awarded by the Employment Tribunal, the Constitutional Court must consider whether the employer has breached the duty to prevent. If they do, the Tribunal can order an increase in compensation of up to 25%. Compensation for sexual harassment is not limited to and includes past and future loss of earnings and emotional harm; as a result, the compensation increase may be substantial. Note that the EHRC may also take enforcement action against the employer.

With just a few weeks to go before the preventive measure goes into effect, what can employers do to prepare?

• Conduct a risk assessment

Consider the risks of sexual harassment, measures to reduce those risks and what measures are appropriate to use.

• Educate employees about sexual harassment and what actions amount to such behavior.

Look at the definition of the Equality Act 2010 and give examples of what would constitute unwanted sexual behaviour.

• Embrace an inclusive workplace culture

Use a zero-tolerance approach to sexual harassment, which will help create a respectful and inclusive environment. Managers and senior leaders have an important role to play.

• Implement a clear anti-harassment policy

Encourage employees to report sexual harassment and establish an effective grievance procedure. Make it clear that abuse can lead to disciplinary action. Communicate the policy and ensure it is easily accessible and updated regularly. Provide support to complainants.

• Provide training to employees and managers

Tailor this to a specific workplace and target audience. Where the abuse of third parties is dangerous, training should address this. Keep records of who received the training, and most importantly, update it regularly.

Be alert and look for warning signs in the workplace, such as illness, absenteeism, decline in performance, change in behavior or resignation.