09.10.2024

From 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 will place a new positive duty on employers to take reasonable steps to prevent sexual harassment at work. This new duty will be enforceable by the Equality and Human Rights Commission (EHRC), and employment tribunals will have the power to uplift the compensation awarded in sexual harassment cases by up to 25% if they find that an employer has failed to comply.  

On 26 September 2024, the EHRC published the final version of its updated technical guidance on sexual harassment at work ('the Guidance') to take account of the new duty, which reflects feedback the EHRC received during the public consultation it undertook earlier this year. This final version provides some useful clarity for employers about the standards they will be expected to meet when the new preventative duty comes into force later this month.  

Below, we explore key points HR need to know about the new preventative duty and steps employers should be taking now to prepare.

Key points to note about the new duty

1. No employer is exempt from the new duty, but what counts as 'reasonable steps' will vary

To comply with the new preventative duty – which from 26 October will sit as a new section 40A of the Equality Act 2010 – employers will need to take 'reasonable steps' to prevent sexual harassment of their workers in the course of employment. (As a reminder, sexual harassment is unwanted conduct of a sexual nature which has the purpose or effect of violating a worker's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that worker.)

While the concept of an employer taking 'reasonable steps' to prevent sexual harassment isn't entirely new – as having taken 'all reasonable steps' to prevent the harassment is a statutory defence that has been available to employers when responding to a sexual harassment claim for some time (see section 109(4) Equality Act 2010 here) – the introduction of a positive duty on all employers to take reasonable steps to prevent sexual harassment arising at work in the first place is brand new.

Crucially, the Guidance makes clear that no employer is exempt from this new preventative duty.  However, the EHRC does not provide a definitive list of steps an employer should take in order to comply with the duty, as there is no prescribed minimum standard an employer must meet. The guidance explains that the question of whether an employer has taken reasonable steps is an objective test and will depend on the facts and circumstances of each situation.  The degree to which steps an employer has taken are considered 'reasonable' will vary from employer to employer and will depend on various factors, as every employer's situation will be different.

Notably, the Guidance now includes an expanded list of factors which are relevant to determining whether the steps taken by an employer are reasonable.  This list includes factors such as the employer's size, the sector in which it operates, the working environment and its resources (as stated in the draft updates), as well as further considerations such as the time, cost and potential disruption of taking a particular step weighed against the benefit it could achieve, and the impact of regulatory standards (such as those set by the Financial Conduct Authority).

The updated guidance includes some new examples for employers, which are worth a thorough read.  For instance, one case study focuses on a company in the construction sector, which has a high risk of sexual harassment due to factors such as having a male-dominated workforce and a culture of crude banter at some sites.  Another example outlines a hospital scenario where a ward manager has failed to take action in relation to sexual harassment by a senior consultant. These examples aim to illustrate the high standards employers will be required to meet in relation to the new duty.

2. The preventative duty is anticipatory, so risk assessments will be key

The Guidance talks about the new duty being both 'preventative' and 'anticipatory', meaning employers should not wait until an incident of sexual harassment has arisen before they take any action.  

Rather, the new duty requires employers to anticipate scenarios in which their workers may be subject to sexual harassment and take pre-emptive action to prevent such harassment taking place. Further, where incidents of sexual harassment have already occurred, the employer must take steps to prevent similar incidents from reoccurring in the future.  After all, if something has happened once in your organisation, even if six months ago, there is a good chance it could happen again.  

Risk assessments will need to form a key part of an employer's compliance with the new duty – this is emphasised in the Guidance, which makes clear that if an employer has failed to undertake appropriate risk assessments they are unlikely to have complied with the preventative duty.  Carrying out a one-off, light touch exercise will not be sufficient in order for an employer to comply.

With this in mind, employers should update their risk assessment processes to take account of the risks of sexual harassment moving forward, and keep those assessments under regular review. Helpfully, the Guidance now lists in detail factors that the EHRC considers may increase the risk of sexual harassment. Employers should consider, for example: the composition of the workforce (do you have a male-dominated workforce and/or gender imbalances in any of your teams, for example where most junior staff are female and most senior managers are male); do staff (or third parties) have access to alcohol at work; is there an expectation that workers will attend events outside of the workplace or stay away from home overnight (particularly if alcohol is being consumed); do staff undertake lone-working and/or night-working; have exit interviews revealed information which may be useful to your assessment of the likelihood of sexual harassment arising; is there a clear process for staff to raise sexual harassment concerns; and how have any previous allegations of sexual harassment been handled?  Make sure you carefully document your assessment of the risks and keep this under regular review.

Notably, the final Guidance states that employers should produce an action plan setting out the preventative steps they will take to address any identified risks and how that will be monitored. The Guidance suggests that employers consider publishing their action plan (for example on their website) and appointing a designated lead to take responsibility for implementation of the action plan and compliance with the preventative duty.

It is clear from the updated guidance that employers should be striving towards creating an organisational culture that proactively prevents sexual harassment, rather than simply reacting when incidents occur.

3. Harassment by third parties counts (and 'third parties' is broad)

Although the House of Lords removed wording in the draft legislation which would have made employers expressly liable for the sexual harassment of their staff by third parties, the EHRC's updated technical guidance states that 'in addition to the prevention of worker-on-worker sexual harassment, the preventative duty includes a duty to prevent sexual harassment by third parties'.  So the EHRC is clear that the new duty includes prevention of harassment by third parties. Notably, the EHRC's list of who can count as a third party is also broad; this could include customers, clients, service users, self-employed contractors or freelancers, patients, students, friends and family of colleagues, delegates at a conference and/or members of the public.

This means that as an employer you should be considering the risk of your workers coming into contact with third parties and the likelihood of sexual harassment occurring in those situations, and then taking reasonable steps to prevent such harassment from occurring.  It is important to address the issue of third parties directly in your HR policies and risk assessments, as well as considering other measures you could take to minimise the risks. For example, could you send a formal letter to all clients and contractors advising of your refreshed stance on tackling sexual harassment? Could you instruct managers to discuss any initial client site visits with female staff to establish whether they are comfortable attending alone? Could you display notices in public and private areas of your offices/venues notifying third parties of your zero-tolerance approach to harassment? Could you bolster your communications with visitors (for example, advise delegates via email of your zero-tolerance approach to harassment policy in advance of attending events)? These are just a few examples of measures employers should be considering in relation to third parties.  Addressing the issue of sexual harassment head-on with third parties such as clients and suppliers may well be uncharted (and perhaps not entirely comfortable) territory, but these types of considerations should be front of mind.

4. No standalone claim, but wide-ranging consequences for employers who do not comply

There will be no freestanding cause of action for a worker where an employer has breached the new duty to prevent sexual harassment under section 40A, so it will not be possible for a worker to bring a standalone claim. However, the new preventative duty on employers will be enforceable by the EHRC – even if the EHRC only suspects that the duty has not been complied with – and employment tribunals will have the power to uplift the compensation awarded in sexual harassment cases by up to 25% if they find that an employer has failed to comply.  Failure to prevent sexual harassment at work could therefore result in substantial costs to an organisation, in terms of financial expenditure, the amount of management time required to defend any legal claims, and of course reputational damage.  

Notably, the Guidance includes new wording notifying workers that they can report a concern about breach of the preventative duty directly to the EHRC (albeit flagging that the individual should consider speaking to their employer or trade union first).

The EHRC already has broad enforcement powers, including powers to investigate and enter into a 'section 23 agreement' (i.e. a legal agreement under which an organisation agrees to take certain steps to prevent sexual harassment in exchange for the EHRC refraining from using its other powers). As has been widely reported in the media, the EHRC has entered into section 23 agreements with numerous high-profile employers over recent years, such as Sainsburys, East of England Ambulance Trust and McDonalds. It seems likely that we may see more of these agreements being used as an enforcement tool by the EHRC in the future.   

5.  Importance of ongoing monitoring and review

Finally, the Guidance emphasises the importance of employers keeping their approach to tackling sexual harassment under close review. With this in mind, you should establish a clear process for regularly reviewing your risk assessment and action plan (e.g. annually and/or after a significant incident), as well as your HR policies, training and other proactive measures to prevent sexual harassment. The Guidance makes clear that compliance with the preventative duty is not static: 'Employers must ensure they review what steps they are taking to meet the duty on a regular basis in the light of their assessment of the risks they face'.

Practical steps for HR

There is no comprehensive list of steps an employer should take to comply with the new preventative duty, as each organisation needs a bespoke approach focusing on its key risk areas and the duty to prevent sexual harassment is both anticipatory and ongoing.  That said, it is worth noting that the EHRC has now published an 8-step guide for employers on sexual harassment in the workplace (in addition to updating the full technical guidance).  We also outline below some recommended action points for HR:

  • Ensure your HR policies and procedures are robust, up-to-date and have been clearly communicated. It is vital that your policies (e.g. anti-harassment and bullying) make clear that your organisation takes a zero-tolerance approach to all forms of harassment, including sexual harassment. Make sure these policies have been clearly communicated to your workforce and that they are implemented consistently in practice. If your organisation recognises a union and/or has other staff networks, actively seek out their comments by asking where they think the key risks lie and then show that you are taking active steps to tackle their concerns.  Policies are of little use if they are just kept in a drawer gathering dust, so keep them under regular review.

     
  • Work on creating the right organisational culture. Staff need to feel able to raise concerns and be confident that any allegations will be handled properly and fairly, regardless of the status of the alleged perpetrator. Part of this is about making sure that your senior leadership team are fully engaged with the preventative steps you are taking and that they openly support your zero-tolerance approach. Senior staff need to 'walk the talk'.

     
  • Include sexual harassment in your risk assessments (see above). Remember that the new employer duty is anticipatory, so you should look for where areas of risk lie and take active steps to minimise the chances of those risks arising.

     
  • Provide mandatory awareness training for all staff. Thorough training on what constitutes sexual harassment and how workers should report inappropriate behaviour that they have experienced, or witnessed, can be a key method of prevention and help to ensure workers are aware that your organisation takes the issue seriously.

     
  • Provide specific training for managers to help them spot when someone may be experiencing harassment and know how to investigate allegations properly. Managers also need training on how to take disciplinary action as appropriate.

     
  • Refresh your training regularly to ensure that it does not go 'stale'.  Establish a clear process for reviewing the effectiveness of your updated policies and training, with a timetable for refresher training. Remember that it will not be enough for employers to take a few steps in readiness for 26 October 2024 and then sit back. Rather, the new duty requires employers to keep issues relating to sexual harassment 'front of mind', with ongoing monitoring and review.

     
  • Take active steps to minimise the risk of sexual harassment by third parties (see above), remembering that the EHRC's definition of third parties is broad.

     
  • Set up anonymous reporting channels for sexual harassment to try and encourage staff to speak up if they are fearful of identifying themselves. Where possible, provide multiple confidential reporting channels (for example, online form, telephone hotline etc.) and notify all staff of these various channels on a regular basis.

     
  • Notify staff of the counselling and support services that are available, for example via any employee assistance line and via local/national helplines (for example, The Equality Advisory and Support Service, Protect and Victim Support).

     
  • Establish workplace champions who can provide advice and support to individuals who experience or witness sexual harassment.

     
  • Set up a data protection compliant evidence hub for managers to record details of all reported incidents (formal and informal) and evidence of sexual harassment.  Commit to reviewing the evidence in this data hub every six months to identify trends and appropriate action to tackle them.

     
  • Conduct regular staff surveys. These can be invaluable for helping employers understand where issues within their organisation could lie.  Commit to refreshing the survey every six months to evaluate whether the actions you have taken have been effective, as well as discussing trends and the results of the staff surveys with your workforce/ their representatives. If you know where the key risks lie, you will be better placed to address them.  

Further changes ahead?

The Labour Government has indicated that it will take further steps to tackle workplace sexual harassment in due course.  In its Plan to Make Work Pay, Labour indicated that it will make the following changes in due course:

  • Strengthen the duty for employers to take 'reasonable steps' to prevent sexual harassment at work – by including the word 'all' before 'reasonable steps'. (The word 'all' was originally included in the draft legislation, but was removed when the Bill passed through the House of Lords, due to concerns that there might be a potentially infinite number of steps an employer could be required to take in order to comply.

     
  • Extend the existing legislation to expressly cover third party harassment (although, as noted above, the Guidance already covers harassment by third parties).

     
  • Strengthen protection for whistleblowers, 'including by updating protections for women who report sexual harassment at work'.  

Limited details have been provided on these proposals, but we will of course keep our subscribers updated on any developments.  

How we can help

Make UK, as your trusted partner, can support your proactive duty to take reasonable steps to prevent sexual harassment of your workers, from compliance into culture. Our offering includes a suite of training covering all levels - from front line to director - and can be delivered virtually or face-to-face. We offer HR and management workshops and visioning sessions, for planning and on-going review and monitoring of the steps taken. In addition, we can provide template documentation, including an anti-bullying and harassment policy (including management guidance notes), an equality policy, workplace risk assessments (which we can offer in conjunction with our health and safety team), an HR action plan and workforce surveys (including Pulse surveys and focus groups), alongside our full suite of ED&I training and consultancy to support your general duties under the Equality Act 2010.  For further details, see Sexual Harassment | Make UK.   

To book a place on one of our half-day training courses on sexual harassment aimed at HR professionals, click here.

We will also explore these issues further as part of our masterclass series, in partnership with Personnel Today.

If you are a Make UK subscriber, please note that our website is in the course of an IT migration process, so our updated anti-bullying and harassment policy, risk assessment and action plan will be available in the HR & Legal Resources shortly. In the meantime, please speak to your regular adviser for further guidance.

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