Are you prepared for the new duty to prevent sexual harassment at work?

On Saturday 26 October 2024 the new Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force. The Act introduces a new positive legal obligation on employers to take reasonable steps to protect their workers from being sexually harassed at work. 

Employers that breach this duty may:

• have to pay additional compensation of up to 25% to any worker who successfully brings a claim of sexual harassment against them, and 
• be investigated by the Equality and Human Rights Commission and have enforcement action taken against them

The Equality and Human Rights Commission has published draft changes to its technical guidance on sexual harassment and harassment at work and is running a short four-week consultation period to make sure that the guidance meets its objective of being “clear and helpful”. The guidance is relatively short and is easy to read. But there are some sections that may come as a surprise - particularly its multiple references to the duty to prevent sexual harassment by third parties (more on that below). 

This blog explains how the law is changing, considers the recommendations set out in the draft guidance and the extent to which employers have a duty to protect staff from sexual harassment by third parties such as clients, customers, service users etc.

What steps are employers already required to take to protect their staff from sexual harassment?

Under the Equality Act 2010, workers are protected against sexual harassment and less favourable treatment because they have rejected, or submitted to, conduct of a sexual nature. The sexual conduct must be unwanted by the victim and violate their dignity or create an environment that is intimidating, hostile, degrading, humiliating or offensive to them. This is judged from the victim's perspective, and they will be protected provided their reaction is reasonable in all the circumstances. 

Sexual conduct can cover verbal, non-verbal or physical conduct including unwelcome sexual advances, touching, sexual assault, sexual jokes and displaying pornographic drawings or sending emails with material of a sexual nature.

Employers are liable for their own acts of harassment and those carried out by their staff in the course of their employment unless they can show that they took all reasonable steps to prevent harassment or discrimination in accordance with s109 of the Equality Act. That aspect of the law is not changing.  

What is changing?

The new duty places an additional responsibility on employers to pro-actively prevent sexual harassment in their workplaces. It only applies to sexual harassment and does not extend to either:

• less favourable treatment of a worker because they have rejected or submitted to sexual harassment; or
• harassment of a worker related to any protected characteristic - including sex-based harassment which is not of a sexual nature 

In line with the current legal position, the new duty will also apply to sexual harassment that occurs “in the course of employment”. This will include behavior that takes place outside the physical workplace, so incidents that occur during work-related events, such as office parties and work conferences will be covered. 

Can a worker bring a claim against their employer for breaching this new duty? 

No. An employment tribunal will only be able to consider whether an employer has breached the new duty once it has upheld an employee's claim for sexual harassment under s26 Equality Act. It's only once that point has been reached that the tribunal must consider whether the employer took “reasonable steps” to prevent it. If they haven't then the tribunal can uplift compensation awarded to the victim by up to 25%.

If the worker's claim fails, the tribunal will not consider whether their employer has breached the new preventative duty.

What reasonable steps should employers take to prevent sexual harassment?  

The draft legislation originally required employers to take “all reasonable steps” to prevent sexual harassment but inclusion of the word “all” was dropped during the Bill's passage through parliament. We've explained why omitting the word “all” is significant and could, potentially, make it a bit easier for employers to comply with the new duty here.  

The new guidance explains that what is reasonable will vary amongst employers and will depend on the employer's size, the sector it operates in, the working environment and resources available to it. There are no particular criteria or minimum standards an employer must meet. 

It recommends that employers should consider:

• the risks of sexual harassment occurring in the course of employment (which will be much higher in those sectors where staff interact with members of the public)
• what steps it could take to reduce those risks and prevent sexual harassment of their workers
• which of those steps it would be reasonable for it to take and then implement them

The original guidance sets out a number of steps that employers can take to help prevent harassment and provides some useful examples. The EHRC has also published a short guide to preventing harassment at work which has some good tips.

Does the new duty apply where staff are sexually harassed by third parties?

An employee cannot bring a claim under section 26 of the Equality Act 2010 if they are harassed by a third party at work. The provisions that previously allowed for these sorts of claims were repealed in 2013 and attempts to reintroduce protection (which were originally included in the Worker Protection (Amendment of Equality Act 2010) Bill) were removed during its passage through the Lords last year. 

Despite that the guidance is peppered with references to employers being under a duty to prevent workers from being sexually harassed by third parties such as customers, clients, service users, patients, friends and family of colleagues, delegates at a conference and members of the public. So, what is going on?

The wording of the relevant provision in the Act says this:

“An employer (A) must take reasonable steps to prevent sexual harassment of employees of A in the course of their employment” 

That is wide enough to include third party harassment. It's likely, therefore, that the EHRC is making it clear that it can take enforcement action against any employer that breaches the preventative duty. 

It's difficult to see how the uplift provisions could apply whilst there is no specific right to bring a harassment claim based on the actions of third parties. That said, the government has indicated that it is committed to re-introducing protection against third party harassment and, therefore, this is likely to change. 

What reasonable steps can employers take to prevent their staff being sexually harassed by third parties? 

That will depend on the type of organisation they operate. There's no doubt that some working environments put employees at greater risk of sexual harassment than others. For example, office-based workers are likely to be less exposed than bar and hospitality workers who may have to deal with customers who become disinhibited after drinking too much. Those businesses that have higher risks will have to take more steps than those whose staff have limited contact with the public.

The guidance provides an example of a theatre company which adopts a zero tolerance policy to third party sexual harassment, communicates it to staff, encourages them to report any incidents and develops a protocol for how reports are dealt with. 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. This theatre then considers if there are any further steps it could take to protect staff at ad hoc events it hosts (such as 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 witness sexual harassment. However, it decides that the training costs would use a disproportionate amount of its limited budget. The draft guidance says that because of the lack of resources and infrequency of these sorts of events, the theatre is likely to have complied with its preventative duty. 

What powers do the EHRC have to deal with employers who breach this duty?

The Equalities and Human Rights Commission has the power to enforce the new duty by:

• carrying out investigations when it suspects that an organisation has breached the duty
• serving unlawful act notices, approving action plans and entering into legally binding agreements with organisations to address ongoing issues of sexual harassment and prevent future sexual harassment from occurring
• assisting with or intervening in certain disputes

The EHRC's enforcement arm is in the public domain and details of its investigations are available on its website.  

Do employers have to follow this guidance?

The guidance is in draft form and, even when finalised, will not compel employers to follow it: it is not a statutory code. Tribunals don't have to take it into account to determine whether an employer has taken reasonable steps to prevent sexual harassment, but it's likely to be influential and employers should be familar with it. 

There is a separate Employment Code of Practice which, the EHRC has said it will update in due course to reflect the new duty. 

When does the consultation end?

The consultation closes on Tuesday 6 August 2024. Please use this link to submit your feedback. 

We can help

We have a suite of training options which will help you to prepare for the new duty to prevent sexual harassment. We can deliver a bespoke training session to your leadership team, or you can purchase one of our back to basics training modules for line managers which includes one on harassment. It's a legally accurate and engaging course which features clear explanations of the law, less obvious examples of sexual harassment and explains why “banter” often leads to harassment claims. 

For more information, please contact Gordon Rodham or Jenny Arrowsmith.

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