7 October 2024

From 26 October 2024, employers will be under a new duty to “take reasonable steps” to prevent the sexual harassment of their employees.

At the end of September 2024, the Equality and Human Rights Commission (EHRC) published technical guidance on the new law and an eight-step guide for employers.

The eight steps are:

1. Policy: Ensuring that an effective anti-harassment policy is in place, including relevant examples from the workplace and a procedure for making complaints.

2. Engagement: Regularly engaging with staff in a variety of contexts (including in one-to-ones, surveys, and exit interviews) to ensure there are forums in which employees can raise concerns and managers can identify problems.

3. Assessment: Carrying out workplace-specific risk assessments for sexual harassment. Note that carrying out risk assessments is critical in discharging the new duty, as the EHRC guidance makes clear (para. 3.31).

4. Reporting: Implementing a reporting system for employees to use.

5. Training: Delivering regular, context-specific training to all managers and senior staff on identifying sexual harassment and dealing with complaints.

6. Handling complaints: Acting immediately to resolve any complaint, taking into account how the worker wants it to be resolved; and taking steps to protect complainants and witnesses, and to protect the confidentiality of all parties, when a complaint is made.

7. Dealing with third-party harassment: Treating this as seriously as harassment by an employee and taking steps to prevent it, including putting reporting mechanisms in place and assessing any high-risk workplaces in which staff might be left alone with customers.

8. Monitoring and evaluation: Regularly evaluating the effectiveness of any steps put in place to prevent sexual harassment in the workplace and implementing any changes arising.

Examples are given in the EHRC technical guidance on compliance with the different aspects of the new duty, including for specific industries/sectors, such as construction (para. 3.32).

Note that the new duty applies only to sexual harassment, not other types of harassment. Sexual harassment is defined as: unwanted conduct of a sexual nature which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them (s26(2), Equality Act 2010).

Penalties for non-compliance

Employees have no freestanding cause of action against their employer where the new duty is not met, but if they successfully bring a claim of sexual harassment in the Employment Tribunal, the Tribunal may increase their compensation by up to 25% to the extent that it finds that the employer has failed to meet the duty.

The EHRC also has powers to enforce the new duty, including by investigating employers and issuing unlawful act notices. Failure to comply with enforcement action by the EHRC may result in criminal liability, giving rise to unlimited fines.

Reasonable steps defence

To comply with the preventative duty, employers must take reasonable steps to prevent the sexual harassment of their workers in the course of employment.

What will count as a “reasonable step” to take is not defined in the legislation. In the EHRC’s guidance, it is stated that what will count as a reasonable step will vary, but will be tested objectively with reference to factors such as:

• the employer’s size and resources

• the nature of the working environment

• the employer’s operating sector

• the risks present in the workplace

• the nature of contact with third parties

• the time, cost and potential disruption of implementing a step weighed against its likely benefit

Third parties

Under the new law and guidance, employers will be under a duty to prevent sexual harassment by third parties, but a worker cannot bring a stand-alone claim in the Employment Tribunal for third-party harassment.

However, employers’ protection from direct liability for acts of sexual harassment carried out by third parties may not last long. There was significant pressure on the previous Government to introduce employers’ liability for third-party harassment, and it is widely anticipated that the new Labour Government will introduce provisions to this effect in the forthcoming Employment Rights Bill (which is likely to be published by 12 October 2024).

For more information, please contact the team at Synchrony Law.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.