On 26 October 2024, the new mandatory duty requiring employers to take reasonable steps to prevent harassment of their employees in the course of their employment comes into force.
Please read our FAQ’s for further information about the new preventative duty and what employers can do to prepare.
- What is the new duty on employers to prevent sexual harassment in the workplace?
The Worker Protection (Amendment of Equality Act 2010) Act 2023 adds new provisions to the Equality Act 2010 and places a mandatory duty on employers to take reasonable steps to prevent the sexual harassment of their employees in the course of their employment.
This new preventative duty requires employers to take positive and proactive steps to prevent sexual harassment in the workplace.
- What is sexual harassment?
The Equality Act 2010 defines sexual harassment as “unwanted conduct of a sexual nature that has the purpose or effect of violating a person’s dignity or crating an intimidating, hostile, degrading, humiliating or offensive environment for that person”. The new duty does not apply to harassment related to other protected characteristics under the Equality Act 2010, such as race and disability.
- What is considered to be ‘in the course of employment’?
Employers are liable for acts of sexual harassment carried out by their employees ‘in the course of employment’ regardless of whether the employer knew or approved of the conduct. Whether an act was ‘in the course of employment’ will depend upon the circumstances of the case. Tribunals have considered acts in the workplace, at work social events and online interactions between colleagues.
- What are considered to be “reasonable steps”?
This is not defined in the legislation, however, ‘reasonable steps’ will depend on the specific circumstances of the employer, such as its size and sector. What is likely to amount to ‘reasonable step’s will be determined on a case by case basis. Employers are encouraged to update practices and procedures for preventing and dealing with sexual harassment and providing up-to-date training to all staff.
- Can a failure to comply with the new duty be brought as a standalone claim?
No, Employment Tribunals will only consider whether an employer has breached this new duty in the event that an individual has been successful in bringing a sexual harassment claim. The Tribunal will then consider whether the employer has also breached its duty to take reasonable steps to prevent sexual harassment in the course of their employment.
- What are the consequences if employers breach this new duty?
If an employer is found to have breached this new duty, the Employment Tribunal has the discretion to uplift the individual’s compensation by up to 25%, depending on the extent to which it finds the employer has breached its new preventative duty.
- Does the new duty cover third party harassment?
No, the new duty does not include protection against third party harassment, such as by customers and clients, as this has previously been found to be too onerous a burden on businesses. However, the employer’s general duty of care to its employees, and the duty to take reasonable steps to prevent sexual harassment of employees during the course of employment, arguably includes an element of protection from third parties, so employers should be aware of the possibility of their employees being subjected to sexual harassment by third parties and take reasonable steps to prevent this.
- What can employers do to prepare for the new duty to prevent sexual harassment in the workplace?
The EHRC and ACAS have provided guidance, but employers are encouraged to take the following action to prepare for the new legislation:
- Review, amend and maintain anti-harassment policies
- Undertake and act upon risk assessments
- Provide mandatory, effective and tailored training for staff and managers
- Put in place clear reporting procedures for employees to report harassment
- Engage staff to ensure they are aware of anti-harassment policies and procedures and how to raise concerns
- Make it clear via communications that sexual harassment is not tolerated in the workplace
If you require any support or assistance with drafting policies and training your staff in advance of the new duty coming into force, please contact us on 0345 646 0406 or complete an online enquiry form, and a member of the team will be in touch.