Key Changes and Preparation
From October 2024, employers will be legally required to take “reasonable steps” to prevent sexual harassment in the workplace. This article outlines the forthcoming legal changes and some of the potential consequences of non-compliance.
Changes to the Law
The Equality Act 2010 currently prohibits sexual harassment. This occurs when an individual engages in unwanted conduct of a sexual nature that either violates another person’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment. This includes behaviours such as:
- Sexual comments, jokes or banter
- Inappropriate physical contact
- Displaying sexually explicit images
- Asking inappropriate questions
- Spreading sexual rumours
Employers are generally held vicariously liable for such conduct. Even if they were unaware of it, they must demonstrate that they took “all reasonable steps” to prevent it, which is a high threshold.
While employers will still have a potential reasonable steps defence, a new preventative duty will be introduced, requiring employers to implement reasonable steps to prevent sexual harassment from occurring in the workplace. Employers facing allegations will need to demonstrate the specific measures taken to comply with this new duty. This is solely focused on sexual harassment and does not extend to other forms of discrimination or harassment.
Reasonable Steps and Demonstrating Compliance
The existing Equality and Human Rights Commission (EHRC) guidance provides examples and case studies that are useful to help employers understand their legal obligations. The EHRC has since released a draft of updated guidance reflecting the new duty, which was open for consultation until early August 2024. The final version is expected in September 2024. Employers should start taking steps now to ensure compliance, as the draft guidance already provides a new section on the “preventative duty.”
The draft guidance emphasises the need for employers to anticipate potential scenarios where sexual harassment may occur and take proactive measures to prevent it. If harassment does occur, employers must act to prevent its recurrence. This makes it crucial for employers to assess risks within their organisation and take appropriate actions to mitigate these risks.
Harassment by Third Parties
The preventative duty is also intended to cover harassment by third parties and advises employers to consider the risks of employees encountering third parties and to take reasonable steps to prevent harassment in these situations.
The ECHR guidance highlights that there are many different types of third parties that could sexually harass a worker. These include customers, clients, service users, patients, friends and family of colleagues, delegates at a conference and members of the public.
The legal protections around third party harassment were abolished, although the new Labour government has indicated that this should be addressed.
Preparing for the New Duty
To comply with the preventative duty, employers must take reasonable steps to prevent sexual harassment of their workers in the course of employment.
The ECHR guidance states that what is reasonable will vary from employer to employer. The guidance states that there are no particular criteria or minimum standards an employer must meet, and no employer is exempt from the duty.
Whether or not an employer has taken reasonable steps is an objective test and will depend on the facts and circumstances of each situation.
The ECHR guidance suggests that an employer should:
- consider the risks of sexual harassment occurring in the course of employment
- consider what steps it could take to reduce those risks and prevent sexual harassment of their workers
- consider which of those steps it would be reasonable for it to take
- implement those reasonable steps
Other factors that may also be relevant are:
- the size of the employer
- the nature of the workplace
- the risks present in that workplace
- the types of third parties workers may have contact with
- the likelihood of workers coming into contact with such third parties
Consequences of Non-Compliance
Failure to adhere to the new duty could result in significant financial and reputational risks for employers:
- Financial Penalties
Should an employee successfully claim sexual harassment in an Employment Tribunal and the employer is found to have breached this duty, compensation awarded may be increased by up to 25%. As there is no cap on harassment compensation, this uplift could lead to a substantial financial impact.
- Reputational Damage
The EHRC will be empowered to enforce this new duty, including taking action against organisations that breach it. Additionally, since tribunal proceedings are public, employers and individuals involved may be named in media reports, leading to potential reputational damage.
Employers should however consider that beyond the legal obligation to comply with the new duty, taking action to prevent sexual harassment offers broader benefits for workplace culture, leading to a safer environment with fewer complaints, absences, and staff turnover.
If you would like to discuss any of the points raised in this article or the steps your business should take concerning the new duty to prevent sexual harassment, please contact our Employment Team.
