Legal update: Your new duty to prevent sexual harassment
On 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 (‘the Worker Protection Act’) comes into force in the UK (excluding N Ireland). This introduces a new duty on employers to take “reasonable steps” to prevent sexual harassment at work.
We’ve put together a detailed guide to the new rules outlining the steps you can take to proactively prevent harassment in your business which you can access here.
What is the new duty?
Sexual harassment is defined in the Equality Act as “unwanted conduct of a sexual nature that has the purpose or effect of violating an individual’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim”
Employers are vicariously liable for acts of harassment carried out by their employees, even if they were unaware of these acts and would not have approved of them, unless they can show that they took “all reasonable steps” to prevent the harassment occurring.
Under the new rules, employers have a new, proactive duty to take ‘reasonable’ steps to prevent sexual harassment occurring. It’s intended to focus employers on putting measures in place to minimise the risks of incidents of sexual harassment arising in the first place.
How will a breach of the duty be enforced?
There are two ways action can be taken if you breach your duty:
- Employment tribunal proceedings and
- Enforcement by the Equality and Human Rights Commission (EHRC)
Employment tribunal proceedings
Workers can’t bring a stand-alone tribunal claim for breach of this new duty. But if they bring a successful claim which involved sexual harassment to any extent, the tribunal has to consider whether the employer failed to take ‘reasonable steps’ to prevent the sexual harassment occurring.
If so, the tribunal can increase the compensation awarded by up to 25%. For example, if an employee is awarded £50,000 in compensation for sexual harassment they suffered at work and the tribunal felt that the employer had not taken reasonable steps to prevent this happening, they could increase the award by 25%, bringing the total compensation awarded to £62,500. The size of the uplift will depend on the extent to which the tribunal believes the employer breached their duty to take preventative steps.
Enforcement by the EHRC
The EHRC is Britain’s independent equality and human rights regulator. The Equality Act gives the EHRC enforcement powers such as:
- The power to conduct investigations.
- The power to issue an unlawful act notice if an investigation finds an employer to be in breach of their obligations. The employer would then need to prepare an action plan setting out how they’ll remedy the breach and stop it happening again.
- The power to make action plans or enter into legally binding agreements with the employer to prevent future breaches.
- The power to apply for injunctions against a person in breach of their duties.
Unlike employment tribunals, the EHRC can take stand-alone action for a breach of the new duty – so even if no acts of sexual harassment have happened, they could take action against you for not taking reasonable steps to prevent it.
Does the new obligation cover acts by third parties?
The Equality Act originally included provisions making employers liable in certain circumstances for acts of harassment by third parties, but these were repealed in 2013.
The notes to the Worker Protection Act make it clear that the new rules don’t give workers the right to bring a tribunal claim under the Equality Act against their employer for sexual harassment by third parties. However, the EHRC updated their guidance to employers on preventing sexual harassment on 26 September 2024 and made it clear that they would consider a failure to take reasonable steps to prevent sexual harassment by third parties to be a breach of the new duty for which they could take enforcement action. So, you should make sure that harassment by third parties is covered in your policies and procedures.
How should employers approach preventing sexual harassment in the workplace?
The EHRC guidance makes it clear that to comply with the new duty to take reasonable steps to prevent sexual harassment, you need to anticipate scenarios where your workers could be subject to sexual harassment and take action to prevent it.
Carrying out a risk assessment will be key to proving that you’ve complied with this new duty. Your risk assessment should:
- Assess the risk of workers being exposed to sexual harassment (including by third parties) and
- Outline what steps you can take to minimise those risks
The EHRC also recommends that employers consult with employee representatives about the measures they plan to put in place.
10 steps which can help prevent sexual harassment in your business
- Carry out a risk assessment
- Have the right policies in place
- Ensure your policies are available to all workers
- Train all workers
- Train managers
- Have clear reporting channels for formal and informal complaints
- Respond to complaints appropriately
- Monitor trends
- Review and evaluate the effectiveness of your policies on an ongoing basis
- Communicate your strategy for prevention, for example publish your completed action plan.
We’ve put together an example workplace harassment risk assessment covering all types of harassment which you can access by logging into Atlas here.
We’ve also updated our bullying and harassment policy in line with the latest guidance and a copy can be found here. We will be updating client handbooks with the new policy wording on or around 28 October 2024. Once your documents have been updated, you will receive an email from Atlas to confirm this. If you would like to make further changes to your policy to reflect more specific arrangements you have put in place in your business, please contact us at hrdocuments@citation.co.uk.
We’re here to help you every step of the way – from having the right policies in place, to delivering training to your teams and guiding you through handling complaints – we’re just a call away. Simply call 0345 844 4848 to speak to our friendly HR & Employment Law advisors whenever suits you.
