Sexual Harassment – New Duty on All Employers

When does the Law come into effect?

The new Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force on 26 October 2024.

What does the Act mean?

The Act introduces a new duty on employers to take reasonable steps to prevent sexual harassment of their workers “in the course of their employment”. Therefore, employers will need to take reasonable proactive measures to prevent sexual harassment from occurring in the workplace as well as ensure that they take reasonable steps to prevent sexual harassment against staff “in the course of their employment,” which means that the duty also includes taking steps to prevent sexual harassment by third parties, such as clients and customers.

Risk Assessments

The Equality and Human Rights Commission’s (EHRC’s) guidance on sexual harassment at work (finalised on 26 September 2024) states that an employer is unlikely to be able to comply with the preventative duty if it does not carry out a risk assessment. This means that employers should carry out risk assessments, which would  enable employers to evaluate the risk of workers being exposed to sexual harassment in the workplace and the steps that can be taken to minimise those risks.

Factors to consider:

The EHRC suggests that factors that could be taken into consideration when conducting a risk assessment include:

• a male-dominated workforce;
• a workplace culture that permits crude, or sexist banter and/or disrespectful behaviour;
• gendered power imbalances (for example where the majority of junior staff are female and senior leaders are male);
• workplaces where alcohol consumption is allowed;
• an expectation for workers to attend social events or conferences offsite or stay overnight (particularly if alcohol is being consumed);
• lone or isolated working conditions, including with third parties;
• night working;
• an insecure/casual working arrangement;
• a failure to respond appropriately to previous reports of sexual harassment;
• the absence of policies or procedures to prevent or respond to sexual harassment; and
• the presence of workers who have more than one protected characteristic (as disabled people, ethnic minorities and people from the LGBT community are more likely to experience sexual harassment).

The guidance further states that where there are risks that only affect one job role or one worker, these should still be considered and addressed.

Reasonable Steps:

The employer must take “reasonable” steps to prevent sexual harassment of their workers in the course of their employment to comply with the preventative duty. What is reasonable will vary for different employers and will depend on factors including, but not limited to:

• the size and resources available to the employer;
• the nature of the working environment;
• the sector in which the employer operates;
• the risks present in the workplace;
• the nature of any interaction with third parties (for example frequency of contact, environment);
• the likely impact of taking a particular step and whether a different approach could be more effective;
• the time, cost and potential disruption associated with taking a particular step weighed against its potential benefit;
• whether concerns of sexual harassment have been raised with the employer;
• compliance with relevant regulatory standards (such as those set by the Financial Conduct Authority or General Medical Council); and/or
• whether any steps already taken have been effective or ineffective (for example if a further incident of sexual harassment occurs after steps have been taken, this may indicate that additional and/or alternative action should be considered).

Designated Lead:

Employers may want to consider appointing a designated lead to take responsibility for implementing an action plan and complying with the preventative duty. The EHRC guidance also makes it clear that employers should not wait until a complaint of sexual harassment has been raised before they take any action.

Breach of the Preventative Duty:

If an employer does not take reasonable steps to prevent sexual harassment of their workers, the preventative duty will be breached. 

Why should I comply?

Employment tribunals cannot consider standalone breaches of the preventative duty. However, if an individual succeeds in a sexual harassment claim and the tribunal finds that that the employer breached the preventative duty, compensation can be increased by up to 25%. It is important to note that the EHRC has enforcement powers and may enforce a standalone breach of the preventative duty as an unlawful act.

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