Employer’s new duty to prevent sexual harassment

Following the #MeToo movement and a government consultation in 2021 which revealed 54% of employees had experienced sexual harassment at work, there has been a focus on how employers can prevent sexual harassment in the workplace. From 26 October 2024, employers will be under a new legal duty to prevent sexual harassment of their employees in the workplace.

Current Law

Sexual harassment is unwanted conduct of a sexual nature that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them from happening, but there is no specific legal obligation to take steps to prevent the harassment in the first place.

Currently, employers can defend a sexual harassment claim if they can show that they took all reasonable steps to prevent the sexually harassing behaviour(s).

Mandatory Duty

On 26 October 2024, a mandatory duty on employers to prevent sexual harassment of their employees comes into force. Employers will be required to take reasonable steps to prevent sexual harassment of its employees in the course of their employment. The Equality and Human Rights Commission (“the EHRC”) have provided guidance with suggestions for how employers are able to be compliant. 

What if Employers don’t comply?

The EHRC will be able to enforce this duty and have the power to:

• Investigate and issue unlawful act notices;
• Enter into legally binding agreements with the employer; and
• Ask the Court for an injunction.

Employment Tribunals will be able to award an uplift of compensation by 25% where it finds that employers have breached this new mandatory duty. 

Not only is this directly negative for the business but is likely to attract adverse public attention and can impact the employees within the business.                                                                                     

What are reasonable steps employers can take?

1. Educate and raise awareness

The first step is for employers to understand what sexual harassment is and then provide mandatory training to educate their workforce.

This should include what amounts to sexual harassment, the standards of behaviour expected in the workplace and how to raise a complaint.

There should also be additional training for managers on how to handle any sexual harassment complaints.

2. Policy

Have a clear and regularly updated policy specifically dealing with sexual harassment which is brought to the attention of the employees. The EHRC guidance suggests what should be included.

3. Culture

Something that is so simple but key – having a zero-tolerance workplace culture which is openly supported by senior management.

Having this kind of culture will also encourage the reporting of sexual harassment by providing different methods. There should be a clear process which enables employees to make complaints and feel supported and a clear process for investigating these complaints. Once an employee makes a complaint this should be monitored to ensure no victimisation takes place.

Once a complaint has been made this should be investigated and resolved, offenders dealt with appropriately and consider what can be put into place to prevent this from happening again if there are any particular risk areas identified.

4. Third Party Prevention

Employers need to ensure that they minimise the risk of sexual harassment by third parties. For example, this could include details in the policy and encouraging employees to report this harassment. 

5. Workplace Champions

Employers could consider appointing workplace champions who support and provide advice to those who witness or experience sexual harassment.

6. Staff Surveys

Conduct regular surveys so that employers can understand the potential risk or problems of sexual harassment both internally and in relation to any third parties that employees are in contact with during their employment.

Labour’s plans

In its Plan to Make Work Pay, Labour have confirmed that they want to ‘properly tackle’ sexual harassment at work and said that it would strengthen the legal duty for employers to take all reasonable steps to stop sexual harassment before it starts. Just as Employers are going to begin to get their heads around this new duty, it may well be it changes again…!

Please do get in touch with the BPE Employment Team for further advice, assistance with policies or to arrange training.

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.