Imminent new legal duty on employers to prevent sexual harassment

Katy Parkinson, senior associate in our employment and HR team, looks at the changes coming into effect from 26 October 2024 relating to the prevention of sexual harassment.

An employer can defend a harassment claim if it can show that it took ‘all reasonable steps’ to prevent it from happening in the first place.

The Worker Protection (Amendment of Equality Act 2010) Act 2023 will create a legal duty on employers to ensure that they take reasonable steps to prevent sexual harassment in the course of employment: the preventative duty.

Failing to do so could expose employers to costly sexual harassment claims in the Employment Tribunal and enforcement action by the Equality and Human Rights Commission (EHRC). Tribunals will be able to uplift awards made against employers by up to 25% where employers fail to comply with the preventative duty.

This legislation was enacted when the Conservative government was in power, and Labour have outlined their intention to strengthen the preventative duty further.

This will see employers required to take all reasonable steps as opposed to reasonable steps, together with the introduction of a preventative duty on employers to prevent sexual harassment of workers from third parties such as customer or clients, together with full liability on employers for third party harassment.

The EHRC recently published updated technical guidance which will help employers to understand their positive legal obligations in relation to the preventative duty, the steps they must take to prevent sexual harassment at work and what they should do if harassment occurs, together with examples of practical steps employers can take.

As an employer, it is vital that you prepare for the preventative duty by ensuring that your business is taking all reasonable steps to prevent sexual harassment.

Undertake or update risk assessments and publish an action plan, review your current policies and reporting mechanisms and implement any changes required, roll out bespoke training for your workforce and ensure you deal with complaints promptly and effectively.

It is essential that your preventative measures are tailored to your business and sector and consider the particular risk factors you face, such as the presence of alcohol, banter in the workplace, night/lone working, a casual workforce and social media contact between workers.

Evidencing ongoing compliance with the preventative duty will also be critical and you could consider appointing a designated lead to take responsibility for implementation of your action plan and compliance with the preventative duty.

If you would like to discuss the preventative obligations, and how the need to meet them will affect your business, please get in touch with our team on 01772 258 321