Preventing harassment now and in the future

On 26 October 2024, a new positive duty was placed on employers to take reasonable steps to prevent sexual harassment in the workplace. Almost 8 months on, we consider the impact of this new regime and what the future might hold.

What is the duty?

The Worker Protection (Amendment of Equality Act 2010) Act 2023 (Act) requires employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment. Under the Act, sexual harassment remains as defined in the Equality Act 2010: unwanted conduct of a sexual nature that violates the victim’s dignity or creates for them an intimidating, hostile, degrading, humiliating or offensive environment.

Where an employer fails to discharge its preventative duty, it risks being investigated by the Equality and Human Rights Commission (EHRC) and the EHRC has the power to take enforcement action. Although a failure to satisfy the duty will not in itself give rise to a stand-alone claim in the employment tribunal, the failure can be considered by the tribunal when deciding the amount of compensation to award in a successful discrimination claim, with the tribunal having the ability to uplift the award by up to a further 25%. The consequences of not complying with this new duty are therefore significant.

The duty under the Act is a preventative one. Consequently, to meet it, employers must be proactive and not wait for an incident of sexual harassment to take place before they act.

What steps should an employer take?

The first task is for an employer to carry out a risk assessment to identify where sexual harassment is most likely to occur and by whom and then consider what steps it is reasonable to put in place to reduce the probability of this happening. What is reasonable will vary from employer to employer depending on its size and resources, the sector it operates in, the working environment and the types of third parties an employee may encounter.

The EHRC published updated technical guidance on 26 September 2024, and an 8-step guide, with a view to assisting employers with what steps they should be taking to prevent sexual harassment within the workplace. The recommended steps include:

• developing an effective anti-harassment policy; 
• engaging with staff, via regular one to ones, staff surveys and exit interviews;
• assessing and taking steps to reduce risks in the workplace;
• having robust reporting processes in place and encouraging employees to raise complaints;
• conducting ongoing training regarding the issue for all staff, plus additional training for managers on how to handle a sexual harassment complaint;
• acting immediately to resolve the complaint, considering how the worker wants it to be resolved and having an effective procedure for investigating complaints;
• having a process for dealing with third party harassment;
• monitoring and evaluating the effectiveness of the steps taken on an ongoing basis and making changes to these where appropriate.

The EHRC has also published sector-specific guidance for the hospitality industry which includes a checklist, action plan and monitoring logs. Although designed for the hospitality sector, other employers may find these a useful resource. The checklists outline three main areas for employers to consider, namely communicating with staff about the employer’s zero tolerance of sexual harassment, changing the work environment to make it as safe as possible and reviewing working practices including making sure the right policies and procedures are in place. The guidance suggests actions employers can take before a shift, at the start of a shift and at the end of a shift.

Alongside these steps, employers can work to create a workplace culture that discourages sexual harassment. This can include promoting and modelling respectful behavior at all levels of the business fostering a zero-tolerance policy towards harassment that is visibly supported by top leadership and encouraging bystander intervention. Employers can also create employee resource groups that provide support and advocacy alongside the internal inclusion networks, initiate regular pulse surveys to gauge the workplace climate, and offer wellness programs that address the mental and emotional well-being of employees.

What impact has the new duty had?

Data provided in response to a Freedom of Information request to ACAS shows that over the previous nine months 16% of reported sex discrimination cases involved sexual harassment. In addition, the number of sexual harassment-related enquiries to the ACAS helpline from both businesses and employees more than doubled in 2024 compared to the previous year.

These figures certainly suggest an increased awareness of the issue of sexual harassment in the workplace and a growing trend towards raising concerns. Employers need to ensure they are complying with the new duty if they are to avoid potential litigation.

What does the future hold?

Proposals included in the Employment Rights Bill will extend the scope of the new duty so that employers are required to take all reasonable steps to prevent sexual harassment of employees. The Bill also seeks to introduce employer liability for third party harassment in relation to all relevant protected characteristics and for all types of harassment, not just sexual harassment. There is a clear direction of travel being set and employers need to ensure they monitor developments and remain compliant.
To assist employers, the Bill provides a power for regulations to be made setting out the reasonable steps an employer is expected to take to prevent sexual harassment. How much further employers are expected to go beyond the steps they are already putting in place remains to be seen.

In conclusion, addressing sexual harassment in the workplace requires a multifaceted approach that encompasses clear policies, ongoing training, and a dedicated commitment from leadership. By following the EHRC's guidance and integrating DE&I principles into core values, employers can create a safer, more inclusive environment. This not only protects employees but also fosters a culture of respect, ultimately enhancing productivity and success within the organisation.