Preventative Duty for Employers

We help everyone interpret and put into action this new guidance. We are not merely messengers; we are here to support you every step of the way to ensure compliance. Our team is dedicated to assisting you in understanding the intricacies of the new guidelines and implementing them effectively. We are committed to providing the necessary resources and personalised assistance to help you navigate these changes smoothly and successfully.

The new section will be in the 'obligations and liabilities under the Act' chapter. In the updated guidance, this will be Chapter 3.

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New guidance section: the preventative duty

Duty on employers to prevent sexual harassment of workers

3.16. Employers have a positive legal duty to prevent sexual harassment of their workers. They must take reasonable steps to prevent sexual harassment of workers in the course of their employment (the ‘preventative duty’) (s.40A(1)).

3.17. Sexual harassment means harassment of the kind described in section 26(2) of the Act (unwanted conduct of a sexual nature) (s.40A(2)).

3.18. Taking reasonable steps to prevent sexual harassment is a key element of the preventative duty.

3.19.?The preventative duty is an anticipatory duty.?Employers should not wait until an incident of sexual harassment has taken place before they take any action. The duty requires that employers should anticipate scenarios when its workers may be subject to sexual harassment in the course of employment and take action to prevent such harassment taking place. If sexual harassment has taken place, the preventative duty means an employer should take action to stop sexual harassment from happening again.?However, if an employer fails to take reasonable steps to comply with the preventative duty, there are consequences.

3.20. Firstly we (the Equality and Human Rights Commission) have the power to take enforcement action against the employer (s.40A(3)).

3.21. Secondly, if an individual succeeds in a claim for sexual harassment and is awarded compensation, an employment tribunal must consider whether the employer has complied with the preventative duty. If it considers the preventative duty has been breached, an employment tribunal can increase compensation by up to 25%?(s.124A).?However, an individual cannot bring a claim for a breach of the preventative duty alone.? For further information about the consequences of failing to comply with the preventative duty read paragraphs 3.37 - 3.43.

3.22. The preventative duty only applies to sexual harassment. It does not cover harassment related to a protected characteristic (including sex), nor does it apply to less favourable treatment for rejecting or submitting to unwanted conduct.

3.23. The preventative duty requires employers to take reasonable steps to prevent sexual harassment by their own workers. It also requires employers to take reasonable steps to prevent sexual harassment of workers by third parties, such as clients and customers, for further detail please read paragraphs 3.35 - 3.36.

Sexual harassment of workers

3.24. Employers must take steps to prevent sexual harassment of workers in the course of their employment. Sexual harassment is unwanted conduct of a sexual nature which has the purpose or effect of:

• violating a worker’s dignity
• creating an intimidating, hostile, degrading, humiliating or offensive environment for that worker

It is explained in further detail in paragraphs 1.19 – 1.22.

3.25. The preventative duty only applies to sexual harassment that takes place in the course of employment. For further information about this, read paragraphs 3.47 – 3.48.

3.26. Sexual harassment of a worker can be committed by:

• another worker
• an agent acting on behalf of the employer
• a third party

3.27. The preventative duty includes prevention of sexual harassment by third parties. Therefore, if an employer does not take reasonable steps to prevent sexual harassment of their workers by third parties, the preventative duty will be breached. The consequences of breaching the preventative duty are explained further in paragraphs 3.62 – 3.68 below.

Example

An employer is updating its anti-harassment policies and planning training for all staff. It is a large distribution centre with most staff working in a warehouse environment. It is not open to the public, but customers can order products and attend the warehouse to pick them up from a customer collection point.

The employer carries out a risk assessment to assess the risk of its workers being exposed to sexual harassment.? It considers what steps it can take to minimise those risks and prevent sexual harassment from taking place and consults with employee representatives about the action it proposes to take. The employer implements a variety of measures including:

• updates to its policies and procedures in relation to sexual harassment to clarify the law, expected behaviours and complaints mechanisms
• training with managers and staff to raise awareness of rights related to sexual harassment and the employer’s policies
• specific training for managers to support them in dealing with complaints
• a process for reviewing the effectiveness of the updated policies and training
• a timetable for refresher training for management and staff

However, the employer fails to consider the risk its workers could be sexually harassed by customers attending the premises to collect orders, despite an incident of such harassment occurring only six months ago.

The employer has failed to consider if there are any reasonable steps it can take to prevent the sexual harassment of workers by third parties.? It has therefore failed to comply with the preventative duty.

We could take enforcement action against the employer if they fail to comply with the preventative duty (read paragraphs 3.37 – 3.39 below for further information).

Reasonable steps

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

3.29. What is reasonable will vary from employer to employer and will depend on factors such as (but not limited to) the employer’s size, the sector it operates in, the working environment and its resources. There are no particular criteria or minimum standards an employer must meet. Different employers may prevent sexual harassment in different ways, but no employer is exempt from the sexual harassment preventative duty.

3.30. Whether or not an employer has taken reasonable steps is an objective test and will depend on the facts and circumstances of each situation.

3.31. 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

3.32. In deciding whether a step is reasonable, the factors set out in paragraphs?3.51 – 3.56?are relevant and should be considered.

3.33. 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

3.34. Chapter 4 provides detailed guidance on practical steps employers can take to comply with the preventative duty.

3.35. In addition to the prevention of worker on worker sexual harassment, the preventative duty includes a duty to prevent sexual harassment by third parties. There are many different types of third parties that could sexually harass a worker (such as customers, clients, service users, patients, friends and family of colleagues, delegates at a conference and members of the public).

3.36. Employers should consider the risk of workers coming into contact with third parties in different situations, the risk of sexual harassment occurring in those situations, and take reasonable steps to prevent such harassment.

Example

A theatre company is considering what steps it can take to prevent the sexual harassment of its workers.? The company is very small and has limited financial resource. It considers there is a risk its workers could be sexually harassed by colleagues, self-employed consultants who sometimes work with the theatre company, and audiences attending its productions. It also considers there is a risk its workers could be sexually harassed by third parties attending opening night parties and awards events. These events are infrequent and take place in various different locations on an ad hoc basis.

The theatre company considers what steps it can take to prevent the sexual harassment of its workers by third parties – self-employed consultants, audiences and members of the public at opening night parties and awards events. After consultation with staff, it adopts a zero tolerance policy to third party sexual harassment, communicates that policy to its staff and encourages them to report any instances of third party harassment that occur.? It develops a protocol for how any reports of third-party sexual harassment will be dealt with.

Self-employed consultants are informed of the zero tolerance policy by email when they contract to work with the theatre company.? Audiences are advised of the policy in an email when they book their tickets.? Notices are displayed in both the public and private areas of the theatre where the company normally runs its productions.

The theatre company considers if there is anything further it can do to protect staff from sexual harassment when at awards ceremonies and launch events.? It considers engaging an external provider to deliver training to staff on keeping themselves safe in public situations and how to safely intervene if they see sexual harassment happening. However, it decides the cost of the training would use a disproportionate amount of its limited budget.

Given the company is small, has limited resource and such events are infrequent, it is likely to have taken reasonable steps to prevent sexual harassment of its workers and therefore complied with the preventative duty.

Our enforcement - EHRC

3.37. If an employer does not comply with the preventative duty, we have the power to take enforcement action against the employer. We have?enforcement powers?under the Equality Act 2006 which include powers to:

• investigate an employer (s.20 Equality Act 2006)
• issue an unlawful act notice if the employer is or has been the subject of an investigation under s.20, confirming that we have found an employer has breached the Act and requiring the employer to prepare an action plan setting out how it will remedy any continuing breach of the law and prevent future breaches (s.21 and s.22 Equality Act 2006)
• enter into a formal, legally binding agreement with an employer to prevent future unlawful acts (s.23 Equality Act 2006)
• ask the court for an injunction to restrain an employer from committing an unlawful act (s24 Equality Act 2006)

3.38. We can use one of our enforcement powers to take action if we suspect the preventative duty has not been complied with.? The preventative duty does not depend upon an incident of sexual harassment taking place to be enforceable by us.

3.39.?Read more about our enforcement powers here.

Increase in compensation for sexual harassment

3.40. If an employment tribunal finds that a worker has been sexually harassed and has ordered the employer to pay compensation to the worker, it must consider if and to what extent the employer has complied with the preventative duty.

3.41. If the employment tribunal is satisfied that the preventative duty has been breached, it may order the employer to pay additional compensation to the worker (‘compensation uplift’).

3.42. The amount of the compensation uplift must reflect the extent to which the employment tribunal considers the employer has not complied with the preventative duty. It must be no more than 25% of the amount of compensation awarded to the worker for the sexual harassment.

3.43. Compensation for sexual harassment can include compensation for both past and future loss of earnings, injury to feelings and personal injury.? For further information about compensation for discrimination claims read paragraphs 15.37 - 15.43 of the?Employment Statutory Code of Practice.?

Example?

A worker is successful in a claim of sexual harassment against their employer. The employment tribunal orders the employer to pay ￡30,000 compensation to the worker for loss of earnings and injury to feelings. The Tribunal must therefore consider whether the employer has breached the preventative duty and if so, whether to apply a compensation uplift.

The employment tribunal decides that the employer has breached the preventative duty, but the extent of the breach is limited. The employer has anti-harassment policies and procedures, which are communicated to staff through regular training. However, the employer has not reviewed the effectiveness of its policies or training in several years. The employment tribunal orders the employer to pay a 10% compensation uplift. The total compensation the employer must therefore pay to the worker is ￡33,000.

Page updates

Published:

9 July 2024

Last updated:

9 July 2024

We help everyone interpret and put into action this new guidance. We are not merely messengers; we are here to support you every step of the way to ensure compliance. Our team is dedicated to assisting you in understanding the intricacies of the new guidelines and implementing them effectively. We are committed to providing the necessary resources and personalised assistance to help you navigate these changes smoothly and successfully.

Although this long article may be hard to decipher, we are here to lower that burden and make the process as straightforward as possible.

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