New Duty to Prevent Sexual Harassment in the Workplace (+ Future Employment Rights Bill Reforms)

Starting from 26 October 2024, all employers will be required to actively prevent sexual harassment within the workplace. The Worker Protection (Amendment of Equality Act 2010) Act 2023, which was enacted by the previous Conservative government, will impose a proactive obligation on employers to take reasonable measures to avert sexual harassment during employment.

This article outlines the new duty and the necessary steps employers should take to prepare. We also look at the proposals in the Employment Rights Bill (ERB), introduced on Thursday, 10 October 2024, that could modify harassment laws, including the new duty.

New Legal Duty to Prevent Sexual Harassment

• Start Date: 26 October 2024.
• Legal Requirement: Employers must take "reasonable steps" to prevent sexual harassment.
• Remedies: Enforcement will be overseen by the Equality and Human Rights Commission (EHRC), with potential compensation increases of up to 25% awarded by employment tribunals.
• Guidance: The EHRC has released guidelines to help organisations understand their legal responsibilities under this new obligation.

Overview of the New Duty

Sexual harassment is already prohibited under the Equality Act 2010 (EqA). Any unwanted conduct of a sexual nature is considered harassment, regardless of intent, if it infringes on an individual's dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment. The assessment of whether conduct has that effect relies on the victim's perspective and the reasonableness of their response in the given context.

Employers can be held vicariously liable for harassment by their employees during the course of employment, even if they were unaware of the conduct. However, they can defend against such claims if they demonstrate that they took "all reasonable steps" to prevent the harassment, which is a challenging standard to meet. This is a defence and is distinct from the new preventative duty, which imposes a positive legal obligation.

Although many employers may already declare in their anti-harassment policies that sexual harassment (and harassment based on protected characteristics like sex and race) is unacceptable, this alone does not fulfil the new legal obligation.

The existing framework encourages employers to adopt preventative measures, such as training, the new Act establishes a legal requirement for employers to proactively prevent sexual harassment by implementing reasonable preventative actions.

This new obligation complements existing duties under the EqA but does not create a separate cause of action for employees in employment tribunals. Allegations regarding breaches of this duty will only be addressed in a tribunal if an employee's sexual harassment claim is upheld.

If an employee successfully proves a sexual harassment claim and the employer is found to have failed in their duty to take reasonable preventative steps, the tribunal may increase the compensation awarded by up to 25%. Since there is no cap on compensation for discriminatory harassment, this increase could be significant.

Furthermore, the new Act empowers the EHRC to enforce this duty and will be closely monitoring compliance. The EHRC's enforcement powers include the authority to:

• Investigate potential violations
• Issue notices requiring employers to devise action plans to address and prevent breaches
• Mandate legally binding agreements for employers to take corrective actions regarding discrimination or harassment
• Seek injunctions to prevent employers from committing unlawful acts.

Currently, harassment by third parties is not covered under the law; however, the government has recently proposed an amendment to include third-party harassment in the EqA as part of its forthcoming Employment Rights Bill. Although failing to comply with the duty regarding third parties may not currently lead to increased compensation, this is expected to change.

Nonetheless, the EHRC's enforcement powers remain applicable, meaning that a failure to prevent third-party harassment—such as from customers or clients—could result in challenging EHRC investigations and reputational damage. The EHRC's updated examples highlight the expectation that employers treat third-party harassment with the same seriousness as internal incidents. Therefore, employers should already address third-party harassment as they would any other form of sexual harassment in the workplace.

Although the EHRC has limited resources, the new Act will raise public awareness, likely leading to more direct complaints to the EHRC and increased media scrutiny for companies that fail to prevent sexual harassment.

Recommended Actions for Employers

As noted by the EHRC, the preventative duty is proactive, and employers should take action before any incidents of sexual harassment occur. Employers should identify scenarios where workers might face sexual harassment during their employment and implement measures to prevent such occurrences. If an incident of sexual harassment has occurred, the employer must take steps to prevent it from happening again.

The reasonable preventative actions will vary based on factors such as the employer's size, sector, and resources, with larger employers expected to take more extensive measures.

The EHRC published an "Employer 8-step guide: Preventing sexual harassment at work" on 26 September 2024, which can be found [here]. This guide recommends the following actions:

1. Develop an Effective Anti-Sexual Harassment Policy: Employers should review contracts, policies, and procedures to align with the new duty and inform their workforce of any changes. Creating a comprehensive anti-harassment policy, including provisions for third-party harassment, is crucial. This policy should clearly define who is protected, assert that sexual harassment is unlawful and intolerable, and outline potential disciplinary actions for violations. It should also provide relevant examples of sexual harassment specific to the workplace.
2. Engage Your Staff: Employers must ensure workers know how to report sexual harassment and understand the consequences of policy violations. Encouraging employee input through formal surveys, staff groups, or informal discussions can help identify concerns and improve workplace protection. Implementing knowledge-sharing initiatives, such as reverse mentoring, can also foster a culture of inclusion and diversity.
3. Conduct a Risk Assessment: Employers should assess and mitigate risks specific to their workplaces. This could involve employee surveys, reviewing complaint records, conducting exit interviews, and performing culture audits. Employers should consider risks from all sources, including third parties like customers and clients, and evaluate power dynamics and potential disrespectful behaviours.
4. Establish Reporting Mechanisms: Clear, accessible channels for reporting harassment are essential, such as dedicated hotlines for internal notifications. All reports should be taken seriously, investigated promptly and impartially, and trends in complaints should be monitored. The outcomes of investigations must be communicated to relevant parties, and any broader systemic issues identified should be addressed. Designating skilled individuals to oversee follow-up actions is advisable.
5. Implement Training: Regular training sessions should be conducted throughout the organisation. Tailoring training to different groups and making it relevant to the specific workplace will enhance its effectiveness. Employers should maintain records of training participation and ensure senior management actively supports and participates in these initiatives, demonstrating a zero-tolerance approach to harassment.
6. Addressing Harassment Complaints: Employers must respond immediately to harassment complaints, respecting confidentiality and considering the complainant's preferences for resolution. Moving the alleged harasser to a different team during the investigation may be necessary to protect the complainant. If the harassment could constitute a criminal offense, employers should discuss reporting options with the complainant and provide necessary support. Timely reporting of complaint outcomes and appeals is essential.
7. Handling Third-Party Harassment Employers should take proactive measures to prevent harassment from third parties, including customers, clients, or suppliers. Establishing reporting mechanisms and assessing high-risk areas are vital for protecting employees.
8. Monitor and Evaluate Efforts: Continuous monitoring and evaluation of implemented actions and organisational culture changes are crucial. Regularly updating risk assessments and training, as well as maintaining comprehensive records, will help demonstrate compliance with the new duty to prevent sexual harassment if required by an employment tribunal.

Employers should clearly communicate their commitment to preventing sexual harassment. They might consider updating websites, blogs, and internal communications, as well as displaying clear signage within premises for employees and visitors. It’s also important to remind staff of expected behaviour ahead of specific events, especially those where alcohol will be served, and encourage them to report any concerns.

Preparing for Future Reforms

While it may be challenging for employers to regulate the behaviour of their employees and third-party individuals, taking preventative actions and clearly communicating a zero-tolerance policy toward sexual harassment is increasingly vital.

Proactively addressing sexual harassment not only fulfills the new Act's requirements but also aligns with broader diversity, equity, and inclusion goals, fostering a healthier workplace culture and potentially reducing complaints, absenteeism, and employee turnover.

Given the government’s expressed intent to enhance protections against workplace harassment, these changes signal a shift towards more comprehensive measures in the future.

Impact of the Employment Rights Bill on the New Duty to Prevent Sexual Harassment

Please note: These proposals aren’t law yet, employers should focus on complying with the new duty but keep the potential ERB changes in mind.

The key reforms proposed in the ERB are as follows:

• Strengthening the Duty: The new legislation will require employers to take "all" reasonable steps to prevent harassment. During the parliamentary process of the Worker Protection (Amendment of Equality Act 2010) Act 2023, the term “all” was removed. Labour’s manifesto promised to strengthen this duty, which the ERB reinstates, reinforcing the requirement for employers to take every reasonable precaution. This change will simplify disputes related to sexual harassment by establishing a clear standard.
• Whistleblower Protections: The ERB also modifies whistleblower laws to explicitly include sexual harassment as a protected disclosure. While current laws may already cover this, the clarification strengthens the legal framework addressing non-disclosure of sexual harassment.
• Liability for Third-Party Harassment: In addition to the new duty to prevent sexual harassment, the ERB will establish employer liability for harassment by third parties, such as customers or suppliers. This provision extends beyond sexual harassment and applies to all relevant protected characteristics under the Equality Act 2010. For employers in sectors where employees frequently interact with the public, this change will be significant.

The government plans to begin consulting on the reforms outlined in the ERB in 2025, with most reforms expected to take effect no earlier than 2026. Changes to the proposals may occur as they progress through parliament.

Finally...

In the meantime, employers should focus on complying with the new preventative duty that takes effect on the 26th of October 2024, whilst keeping the potential ERB changes in mind while conducting risk assessments.

Disclaimer: This post (and any information accessed through links within) is for informational purposes only and does not constitute legal advice. Before taking or refraining from any action based on the contents of this document, you should seek professional legal counsel. If you need tailored legal guidance on HR, employment law, or health and safety matters, we recommend consulting with a qualified Avensure advisor.