New duty to prevent sexual harassment

The Equality and Human Rights Commission (EHRC) published a report saying workers had insufficient protection from sexual harassment. It recommended a mandatory duty for employers to take reasonable steps to protect workers from sexual harassment in the workplace. The Women and Equalities Select Committee produced a report agreeing with the creation of such a mandatory duty. 

Legislation was subsequently introduced, which created a new legal duty for employers to actively prevent sexual harassment in the workplace. This came into effect on 26 October 2024.  

The duty places a legal obligation on employers to take reasonable steps to prevent sexual harassment of their workers during the course of their employment. This is a proactive, anticipatory and preventative duty. Employers should anticipate scenarios when its workers may be subject to sexual harassment during employment and take action to prevent it. If such sexual harassment occurs, additional steps should also be taken to prevent it from happening again. Employers should give ongoing consideration as to if they are doing enough to prevent sexual harassment from occurring.

The duty extends to preventing workers suffering sexual harassment from anyone, not just fellow workers. Previously, there were few legal options available to workers against their employers if they had suffered sexual harassment during their employment from someone who was not also a worker of their employer (a ‘third parties’) e.g. customers, service users, independent contractors etc. 

The EHRC have provided guidance for employers to follow if they wish to comply with the duty, including an 8-step guide:- 

  • Step 1: develop an effective anti-harassment policy. 
  • Step 2: engage your staff. 
  • Step 3: assess and take steps to reduce risk in your workplace. 
  • Step 4: reporting i.e. let staff know what to report and how.
  • Step 5: training. 
  • Step 6: what to do when a harassment complaint is made. 
  • Step 7: dealing with harassment by third parties. 
  • Step 8: monitor and evaluate your actions. 

It is of note that employers don’t necessarily need to take preventative steps they have identified might help reduce the risk of sexual harassment occurring, if on balance they consider the steps are not reasonable. What is reasonable will vary from employer to employer, and involve a balancing act of many factors, such as: 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; and the likelihood of workers coming into contact with such third parties. 

This duty is certainly a welcome step in the right direction. Amongst other things, it should enhance protection, increase accountability and promote inclusiveness. It goes without saying that individuals should be able to go to work without fearing sexual harassment.  

However, in the writer’s opinion, it does not go far enough. Standalone claims cannot be pursued for a breach of this duty. Instead, claims for sexual harassment must first be brought, successfully, to enable a Tribunal to consider if such a breach has occurred. If the Tribunal considers it has, the compensation awarded for the sexual harassment claim can be increased by up to 25%.  

It appears to the writer that there is still a significant gap in legislation where workers can seek legal action against their employers for sexual harassment they have been subjected to by a third party, as there are limited circumstances in which workers can successfully pursue a claim.  

The EHRC does, however, possess enforcement powers against employers. These include the powers to investigate an employer and issue an unlawful act notice stating the EHRC has found the employer in breach of the duty and requiring the employer to prepare an action plan setting out how it will remedy any continuing breach and prevent future ones.  

Steps workers might take 

If you don’t think your employer is doing all they should to prevent sexual harassment in the workplace, you might consider raising the issue with your union representative or employer’s HR department. Alternatively, you could raise it with the EHRC or wait to do so subject to if the employer provides a satisfactory response to concerns you raised with them. If you consider you might have a claim in the Tribunal, it’s advisable to seek legal advice without delay. 

 

Author: Tony Rippon, employment.