Has your organisation fulfilled its obligations to prevent sexual harassment?

As Christmas party season approaches, employers are encouraged to review their current practices to ensure compliance with their duty to prevent sexual harassment in the workplace.

What is the duty?  

The Worker Protection (Amendment of Equality Act 2010) Act 2023 introduced a new, proactive legal duty on employers, effective from 26^th October 2024, to take reasonable steps to prevent the sexual harassment of their workers in the course of employment.

Who does this duty apply to?

All employers, regardless of size or industry, are required to proactively identify and prevent sexual harassment, rather than simply respond after incidents occur. This shift moves from a reactive to a proactive approach that emphasises prevention and defines clear standards for organisational culture, risk management, and governance.

What’s changed?

The key changes are as follows:

What steps should employers have taken by now?

The determination of what constitutes “reasonable steps” is influenced by several factors, including the size and resources of the employer, the industry sector, the level of risk, and specific work practices. Nevertheless, all employers are expected to adhere to certain procedural standards.

By now, employers should be able to evidence that they have:

1. Conducted a risk assessment to determine when and where workers may face sexual harassment, examples include: public-facing roles, lone or night work, hybrid settings, events with alcohol and situations with power or gender imbalances.
2. Identified reasonable measures to prevent the risks identified based on the organisation’s own circumstances.
3. Implemented these measures, examples include: clearly communicating zero-tolerance to employees (particularly ahead of social events, such as Christmas parties), issuing updated policies with clear reporting procedures, training staff on sexual harassment definitions and expectations, and providing managers with advanced training on prevention and incident response.

What happens if an employer does not meet this duty?

Employees cannot bring a claim solely for breach of an employer’s preventative duty, but if a sexual harassment claim succeeds, compensation may be increased by up to 25% if the employer failed in its duty. The EHRC can investigate and take enforcement action even without a tribunal claim.

Employers may also face reputational damage, increased incidents, strained employee relations, and a higher risk of tribunal claims.

Comment  

Employers must implement effective measures to prevent sexual harassment, beyond generic policies or basic training, to fulfil legal obligations and defend against claims. The Tribunals and EHRC determine “reasonable steps” based on each workplace’s circumstances.

It is worth noting that the new Employment Rights Bill proposes to strengthen this preventative duty, requiring employers to take “all reasonable steps” and reinstate third-party harassment liability. Therefore, implementing prevention strategies now and ensuring that your staff are aware (and properly trained) on these changes will help to mitigate the risk and exposure to claims for your business in the future.

Our employment team can deliver targeted training for your HR team, managers and senior leadership – equipping them with the knowledge and strategies needed to navigate these workplace changes confidently.

For further details and to learn more, please get in touch with our employment team.