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Employers now have less than one month to prepare for the new duty to prevent sexual harassment coming into force. Seven years after the #MeToo movement highlighted widespread sexual harassment in Hollywood and beyond, a new legal obligation comes into effect on 26 October 2024. The Worker Protection (Amendment of Equality Act 2010) Act 2023 (the Act) compels UK employers to take decisive action to prevent sexual harassment in the workplace. The new duty introduces a transformative shift in employer responsibilities, requiring proactive measures to combat sexual harassment rather than merely responding to claims after they arise.

The shift from reactive to proactive responsibility

Under the previous framework, employers were required to take 'reasonable steps' to prevent harassment, but this obligation only became relevant if an employee lodged a discrimination claim. The onus was on the employer to prove that they had done everything reasonable to prevent harassment, but this often meant that action was taken only after an issue had been raised.

The new duty fundamentally changes this dynamic by introducing a positive duty on employers. Instead of waiting for issues to surface, employers must now proactively implement 'reasonable steps' to prevent sexual harassment from occurring in the first place. This shift from a culture of reaction to one of prevention represents a significant evolution in workplace protections.

What are 'reasonable steps'?

The Act does not define specific 'reasonable steps' that employers must take, leaving room for interpretation based on the unique circumstances of each workplace. The Equality and Human Rights Commission (EHRC) has provided guidance to help employers navigate this new duty, emphasising that the reasonableness of a step will be judged objectively. Factors, such as the organisation size, work environment, potential risks, and the likelihood of employees interacting with third parties, should all be considered when determining what constitutes a reasonable step.

Employers are encouraged to anticipate scenarios where employees might be at risk of sexual harassment and to put measures in place to mitigate these risks. This might involve updating workplace policies, improving communication channels for reporting harassment, or enhancing training programmes to ensure all employees understand their rights and responsibilities.

Does it include harassment from third parties?

An area of uncertainty under the new duty is the issue of third-party harassment, eg when an employee is harassed by someone who is not an employee, such as a customer or client. The Act does not explicitly impose a duty on employers to prevent third-party harassment, but the EHRC鈥檚 guidance suggests that employers should still take reasonable steps to protect their employees from such incidents.

Employers are advised to consider implementing measures, such as visible signage in areas where employees interact with external individuals, clearly stating that harassment will not be tolerated. Additionally, employers should ensure that there are robust reporting mechanisms in place for employees to report incidents of third-party harassment. By doing so, employers can help create a safer work environment, even in situations where the harasser is not under their direct control.

Consequences of non-compliance

The new duty does not create a standalone claim that employees can bring to an employment tribunal. However, if an employee successfully brings a claim for sexual harassment and the employer is found to have breached the new duty, the consequences can be significant. The new duty gives employment tribunals the authority to increase any compensation awarded to the employee by up to 25% if the employer is found to have failed in their duty to prevent harassment. Compensation for sexual harassment claims is unlimited, meaning the 25% penalty could make a huge difference to the compensation awarded in a successful claim.

In addition to the financial penalty, the EHRC has been granted enhanced powers to enforce this new duty. The EHRC can conduct investigations if it suspects that an employer has committed an unlawful act and enter into binding agreements with employers to address ongoing issues of discrimination or harassment. They can even intervene in certain disputes. In recent years, the EHRC has acted against several large employers that failed to adequately address sexual harassment within their workforces. Enforcement of this new duty is likely to be robust.

Businesses regulated by the Financial Conduct Authority (FCA) will also need to keep a watchful eye on any changes made to its Conduct Rules to address non-financial misconduct. Such misconduct would cover behaviours such as bullying, discrimination and harassment.

Guidance for employers: navigating the new duty

It is crucial that employers take immediate steps to ensure they have systems and processes in place to protect their employees from sexual harassment. This should include the following steps as a minimum:

1. Conduct a comprehensive risk assessment

Employers should start by reviewing existing policies and processes related to sexual harassment. This includes assessing the effectiveness of current reporting procedures, identifying potential risks within the workplace and considering how these risks can be mitigated. A thorough risk assessment will help employers identify gaps in their current approach and develop strategies to address them.

2. Develop and communicate clear anti-harassment policies

Having a well-defined anti-harassment policy is essential. This policy should outline the organisation鈥檚 zero-tolerance stance on sexual harassment, define what constitutes harassment, and provide clear guidance on how employees can report incidents. It is important that this policy is communicated effectively to all employees and is reviewed and updated regularly to ensure it remains relevant and effective.

3. Implement comprehensive training programmes

Training is a critical component of preventing sexual harassment. Employers should provide regular training for all employees, with additional, specialised training for those responsible for implementing policies and handling complaints. Training should cover the organisation鈥檚 anti-harassment policy, the legal implications of harassment and the steps employees can take to report and prevent harassment.

4. Foster a culture of inclusivity and respect

Creating a workplace culture that promotes inclusivity and respect is key to preventing sexual harassment. Senior management should lead by example, clearly communicating the organisation鈥檚 commitment to a harassment-free workplace. Regular communications from leadership can reinforce the importance of maintaining a safe and respectful work environment.

5. Ensure thorough investigation and appropriate action

Employers must ensure that all complaints of sexual harassment are thoroughly investigated, and appropriate action is taken in response. This includes taking disciplinary action against perpetrators and providing support to victims. A robust investigation process not only addresses individual incidents but also sends a strong message that harassment will not be tolerated.

6. Prepare for potential third-party harassment

While the Act does not explicitly require employers to prevent third-party harassment, it is prudent to take proactive measures in this area. This might involve training employees on how to handle interactions with external parties, establishing clear reporting channels for third-party harassment, and displaying signage that reinforces the organisation鈥檚 stance against harassment.

Conclusion

The introduction of the new duty represents a pivotal moment in the ongoing effort to combat sexual harassment in the workplace. By imposing a positive duty on employers to take reasonable steps to prevent harassment, the new duty aims to create safer, more respectful working environments across the UK. Employers must now take proactive measures to comply with the law and protect their employees from harassment. Taking action now ensures that their workplaces are not only legally compliant but also conducive to the well-being and dignity of all workers.

Our experienced team of employment lawyers and equality, diversity and inclusion specialists can work with you to identify risk areas, transform your workplace culture and mitigate the risks.

If you are an employer and would like support on any of the issues discussed in this article, please contact Charlie Barnes.