From 26 October 2024, employers will need to take reasonable steps to prevent sexual harassment of employees in the course of their employment (known as the preventative duty).
The Equality and Human Rights Commission technical guidance on Sexual harassment and harassment at work (the guidance) was updated on 26 September 2024. This provides details on the steps employers should take to prevent sexual harassment in the workplace. This guidance emphasises that the preventative duty is a proactive duty and that employers should not wait until an incident of sexual harassment has taken place before they take action.
What is the new preventative duty?
The Worker Protection (Amendment of Equality Act 2010) Act 2023 creates a new duty on employers to take reasonable steps to prevent sexual harassment of employees in the course of their employment. This preventative duty only applies to sexual harassment, not other types of unlawful harassment related to other protected characteristics.
Under existing law, harassment is defined as unwanted conduct related to a protected characteristic, which has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment. Sexual harassment is defined as “unwanted conduct of a sexual nature”.
In addition to the new statutory wording, employers will need to consider the EHRC guidance along with the EHRC’s short guide for employers on preventing sexual harassment at work which sets out 8 key steps for employers to take (the 8-step guide).
What does “reasonable steps” mean?
The obligation is on employers is to take “reasonable steps”. Confusingly, similar language can be seen in the employer defence against claims brought against them for discrimination carried out by one of their employees, where employers can avoid liability by showing that they took “all reasonable steps” to prevent the employee from doing that thing. That defence hardly ever succeeds, as “all reasonable steps” is a very high bar. We can deduce, therefore, that “reasonable steps” should be a lower threshold that may be more readily achievable.
The guidance says that what is reasonable will vary from employer to employer. In deciding whether a step is reasonable, several factors may be relevant, including the size and resources of the employer, the nature of the working environment and the sector the employer operates in. It will also be relevant whether concerns have been raised with an employer that sexual harassment has taken place and the nature of any contact with third parties. Other factors are also set out in the guidance.
The 8-step guide sets out some practical steps employers can take to show they are taking reasonable steps to prevent sexual harassment. These are summarised below:
Step 1: Develop an effective anti-harassment policy – Employers should review and update their current policy and consider whether to have a separate sexual harassment policy. The policy should, amongst other things, define sexual harassment and provide clear examples of it, include an effective procedure for receiving and responding to complaints of harassment and address third-party harassment (see below). Policies and other measures should be developed in consultation with recognised trade unions or other representatives.
Step 2: Engage your staff – Employers should consider conducting 1-2-1s, staff surveys, exit interviews and having open door policies to help understand potential issues and whether steps taken are working. Employees should be aware of how to report sexual harassment, the anti-harassment policy and the consequences of any breach.
Step 3: Assess and take steps to reduce risk in your workplace - The guidance makes it clear that all employers should carry out a risk assessment to consider the risks of sexual harassment occurring in the course of employment. The guidance set out a list of factors that could be considered, such as power imbalances, job insecurity, lone working and night working, the presence of alcohol and customer or client facing duties. The guidance also sets out a list of factors that may increase the risk of sexual harassment, such as a male dominated workforce and workplaces that permit sexist banter. The guidance provides that employers should produce an action plan that sets out what preventative steps they will take to address any identified risks and how that will be monitored.
Step 4: Reporting – The guidance suggests that employers consider using a reporting system that allows workers to raise an issue in name or anonymously. Records should be kept of all concerns raised to assist with identifying trends.
Step 5: Training – All staff should be trained on what sexual harassment is, what to do it if they experience or witness it and how to handle complaints of sexual harassment (including third party harassment). Refresher sessions should be carried out at regular intervals.
Step 6: What to do when a harassment complaint is made – This is a huge topic, but headlines are to act promptly to take steps to investigate and resolve the complaint, taking into account how the worker wants it to be resolved and protect them from ongoing harassment or being victimised during an investigation or complaint.
Step 7: dealing with harassment by third parties – The guidance states that harassment by a third party, such as a customer, client, patient, or supplier, should be treated just as seriously as that by a colleague. Employers should take steps to prevent this type of harassment, including putting reporting mechanisms in place or assessing high-risk workplaces where staff might be left alone with customers or clients or other third parties. Businesses with customer facing employees may want to amend signs in public places to make it clear to third parties that sexual harassment will not be tolerated.
Step 8: monitor and evaluate your actions - It is important to regularly evaluate the effectiveness of the steps put in place to prevent sexual harassment in the workplace and implement any changes arising from that. This could include surveying staff anonymously on their experiences of sexual harassment, holding lessons-learned sessions after any complaints of sexual harassment are resolved and reviewing policies, procedures and training regularly.
These steps are not exhaustive and there is much more detail contained in the guidance. The example given in the guidance of reasonable steps for a large firm with a risky sexual harassment profile is instructive and detailed. It includes setting up specific training for managers, identifying three senior leaders to champion the issue, setting up a senior management development programme for women, sending a formal letter to all clients and contractors to advise of the firm’s refreshed stance on tackling sexual harassment, setting up anonymous reporting channels for sexual harassment and running refresher training for all staff. The complete list in this example is substantial but is said to be reasonable given the size and resources of the employer and the high risk of sexual harassment.
Who can bring a claim under the preventative duty?
Freestanding claims cannot be brought for breach of the preventative duty. However, where a claimant has succeeded in bringing any sort of harassment claim (importantly not limited to sexual harassment), but where that claim involved sexual harassment “to any extent”, the tribunal must consider whether the employer has contravened the duty to prevent harassment. Therefore, claimants can only allege a breach of the preventative duty where they are bringing another claim. We wait to see how tribunals interpret these provisions. For example, how closely does the sexual harassment have to link to the main harassment claim? It only has to be involved “to any extent”, so for example, it could cover a race-based harassment claim, where there has been an allegation in one of the witness statements of a historic sexual harassment incident. In those circumstances, the tribunal might be under an obligation to consider the preventative duty, even though it is otherwise unrelated to the claim in question.
What are the penalties of failing to comply?
Where a tribunal finds that an employer has failed to comply with the preventative duty, they have the power to uplift compensation by up to 25%. The guidance sets out an example where a worker is awarded £40,000 for compensation for loss of earning and injury to feeling. The uplift is on this total amount of compensation, adding £10,000 to the award made.
Can the EHRC take action if employers do not comply with the new preventative duty?
The EHRC is able to enforce the preventative duty using its existing enforcement powers. Workers can report concerns directly to the EHRC that the preventative duty has been breached, but at this stage it is unclear to what extent the ECHR will pursue any concerns raised. The EHRC can make life very difficult for employers where they do take action. Earlier this year the EHRC investigated Pontins and found 11 unlawful acts which discriminated against Irish Travellers. The EHRC then issued an action plan setting out the steps Pontins must take to address its discriminatory policies, including a formal apology, a zero-tolerance approach to discrimination, a whistleblowing action plan to strengthen protection for whistleblowers and safeguards in systems and processes. The EHRC will now monitor the implementation of the action plan. This is potentially the types of actions we might expect to see in relation to the preventative duty.
Does the new duty cover third party harassment?
Yes, it is likely to be interpreted to cover third party harassment.
On the face of the broad wording of the legislation, the new duty is to take reasonable steps to prevent sexual harassment of employees in the course of their employment. This wording leaves the identity of the perpetrator silent, meaning that harassment of employees by third parties, such as customers and clients, could indeed be covered.
The EHRC is clearly of this view. The guidance says: “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.” The guidance includes an example where an employer has implemented a variety of measure to prevent sexual harassment but has not considered the risk of sexual harassment by customers, despite a previous incident of such harassment. The employer in those circumstances is said to have failed in its duty to take reasonable steps.
The guidance also lists potential third parties that could sexually harass a worker as including customers, clients, self-employed contractors or freelancers, service users, patients, students, friends and family of colleagues, delegates at a conference and members of the public.
What actions should employers be taking now?
The guidance emphasises that this is an anticipatory and proactive duty and therefore employers should not wait until a complaint of sexual harassment has been raised before taking action.
At a minimum, employers should be doing the following as soon as possible:
- Carry out a risk assessment and create an action plan – consult staff if possible
- Review policies and procedures and amend these to cover the preventative duty and to comply with the recent guidance – new versions to be well publicised and freely available
- Train staff and consider reporting mechanisms – keep records of who receives training and refresh regularly
Critically, this is an ongoing duty, not a one-off compliance task. Employers should continue to review whether there are any further steps it is reasonable for them to take, considering issues such as whether there have been any changes in the workplace or the workforce. Policies should be monitored, and their success reviewed at least annually.
Future changes: The Employment Rights Bill
On 10 October 2024, the government introduced the Employment Rights Bill to parliament. Under the Bill, the preventative duty to take reasonable steps to prevent sexual harassment will be extended to a requirement to take all reasonable steps. The Bill also provides for regulations to specify what constitutes reasonable steps for these purposes, reducing the employer’s discretion. The Bill provides that such steps may include, specifically, the carrying out of risk assessments, publishing certain plans or policies, and taking steps relating to the reporting of sexual harassment and relating to the handling of complaints. If this part of the Bill is implemented into law, this change will bring the test in line with the employer defence mentioned above, which is a very high bar and extremely hard to comply with.
The Bill also introduces a new standalone concept of third party harassment. It provides that an employer will be liable if a third party, such as a customer or client, harasses an employee in the course of his or her employment and the employer has failed to take all reasonable steps to prevent that harassment. This will not be limited to sexual harassment but will cover all types of unlawful harassment.
We expect the majority of the reforms in the Employment Rights Bill to take effect no earlier than 2026. The government has also committed to consulting on certain matters before finalising how these reforms will be implemented in practice. There is scope therefore for the Bill to be amended as it works its way through the parliamentary process.
Frances Rollin