The new duty to prevent Sexual Harassment in the workplace

The Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force on 26 October 2024 and will introduce a duty on employers to take reasonable steps to prevent sexual harassment of their employees.

The Equality and Human Rights Commission (EHRC) has recently commenced consultation on draft guidance on the preventative duty and its existing technical guidance with a view to helping employers understand the requirements of the new legislation.

It highlights that the duty is “anticipatory”, meaning employers should not wait for sexual harassment to happen before taking action. Employers should anticipate scenarios in which employees may be subject to sexual harassment in employment and take reasonable steps to prevent it. If sexual harassment has taken place, the employer should take steps to stop it happening again.

It gives guidance on reasonable steps that employers may take and sets out the potential consequences of failure to comply with the duty. These include enforcement action by the EHRC and a new power for tribunals to increase compensation by up to 25% where an individual succeeds in a sexual harassment claim and the employer has not complied with the preventative duty.

There is a possibility of enforcement action by the EHRC. The EHRC will have the following powers:

(a) Undertake an investigation.
(b) Issue an unlawful act notice.
(c) Enter into an agreement with the employer to prevent future unlawful acts.
(d) Seek an injunction to restrain an employer from undertaking an unlawful act.

The draft guidance emphasises that the preventative duty also covers harassment by third parties. There is currently no legal protection for employees harassed by third parties. The guidance suggests that the new duty will require employers to take reasonable step to prevent sexual harassment by both their own workers and third parties.

The EHRC states that the draft text is intended to be added to the existing technical guidance on sexual harassment. The consultation alludes to other “minor” changes to the guidance, but they are not set out or subject to consultation.

It is important that employers consider steps that need to be taken which of course will vary for different employers but may include:

(a) Reviewing and updating policies which clearly set out definitions of harassment.
(b) Making attendance at equality and diversity training mandatory.
(c) Ensuring that employees can report complaints.
(d) Ensure that any concerns raised are investigated thoroughly and promptly.

The consultation is due to close on 6 August 2024.

We will be running a series of seminars in relation to this new duty, and in particular what amounts to reasonable steps once the guidance has been updated. If you would like us to run a seminar for your organisation, please contact Sejal Raja.