New Duty to prevent sexual harassment in the workplace.
From 26 October 2024, there will be a new obligation on employers to ensure they take reasonable
steps to prevent sexual harassment. This is as a result of the introduction of the Worker Protection
(Amendment of Equality Act 2010) Act 2023.
What is the position at the moment?
At the moment, if the claim of harassment is brought under the Equality Act 2010, a possible defence
that is open to an employer is if they can show that they took all reasonable steps to prevent
harassment from happening in the first place.
What is changing?
There is now going to be a proactive duty on employers to take reasonable steps to specifically prevent
sexual harassment in the workplace. At the moment, this does not apply to other forms of harassment
relating to for example religion or belief, race, age or disability.
It also will not apply if the harassment is related to sex (whether male or female) but is not sexual in
nature.
What happens if no such steps are taken?
If an employer fails to be able to show that it has taken proactive steps to prevent this behaviour
happening, there could be an uplift in compensation by up to 25%. This will be in addition to any
reputational risk that a claim of this nature could bring.
Remember also that there is no cap on the compensation that can be awarded for discrimination and
therefore this uplift could in some cases have a serious financial implication for an employer.
Is there any guidance?
At the moment, the EHRC has put together some updated guidance on this particular issue of sexual
harassment in the workplace but at the moment it is still in draft form. The hope is that it will be
finalised some time during this month.
Hopefully, the guidance will not change that much between now and the duty coming into force. The
company will have to try to anticipate scenarios when there is a risk of sexual harassment arising and
take action to prevent it. It will therefore be important for employers to consider the following;
- Assess risk and use risk assessments more widely to be able to evidence that this has been
assessed - Review what training is given to staff
- Review the current grievance procedure. Consideration should be given to setting up a separate
antiharassment policy. - Consider whether the company should put in place exit interviews to identify if there are any
culture problems - Does an employer need to introduce an expectation of behaviour at out of hours work events,
even if they are social. This would cover situation such as Christmas parties and other work-
related social events.
This duty will also apply to any potential risk of harassment by third parties such as clients and
customers. However, the risk of an uplift in compensation is likely to be low given that this only applies
where the employer is legally liable.
