Five immediate steps for employers: the new duty to prevent sexual harassment

On 26 October 2024, a new duty on employers to proactively take "reasonable steps" to prevent sexual harassment comes into force. But what does that mean in practice?

Quick reminder of the current law

The current law is being added to, and not replaced. These existing rules will still apply:

• The starting point is that employers are vicariously liable for sexual harassment committed by their staff in the course of employment.
• If an employer can meet the very high threshold of showing that it took "all reasonable steps" to prevent harassment, then it can defend the claim and avoid liability entirely. Tribunals have been reluctant in practice to accept that employers have satisfied the "all reasonable steps" defence.

What is the new duty?

The new provisions add a proactive duty to take "reasonable steps" to prevent sexual harassment. What this means in practice will depend on the employer's unique circumstances, including size and resources.

• The Equality and Human Rights Commission (EHRC) can investigate employers and take enforcement action based on a suspicion of non-compliance. It can act before there is a claim and there does not need to be an incident of sexual harassment before the EHRC will consider exercising its enforcement powers.
• The Employment Tribunal can increase compensation for a successful claim of sexual harassment by up to 25%.

Is third party harassment covered?

Potentially, and it would make sense to proceed on that assumption.

• The EHRC guidance states that there is a duty to prevent sexual harassment by third parties, such as clients and customers, service users and members of the public, and that employers should consider the risk of sexual harassment and take reasonable measures to mitigate such risk.
• However, the new legal provisions do not specifically address this and currently employers are not liable for harassment by third parties. The government has promised to introduce direct legal protection from third party harassment and there has been commentary that the new "reasonable steps" requirement as drafted could potentially extend to protection from third party harassment.

Five practical steps for employers

1. Identify key stakeholders

Consider who should be involved in the process, designing any new procedure and responding to learnings. This may involve HR, DEI and ESG leads, senior champions, employee representatives/diversity groups, trade unions, affected individuals, external consultants and legal teams.

2. Understand what is currently happening

• Staff engagement survey: You can provide a safe forum to listen to staff experiences. Ensure that stakeholders understand that this exercise could initially lead to an increase in reported concerns and create a staff expectation of action.
• Reflecting on past issues: Collating data about previous issues to identify patterns and vulnerabilities.
• Risk assessment: Understand environmental factors connected to sexual harassment, such as social events, power imbalances, isolated/late/remote working, third party interactions, lack of diversity in a range of levels/roles, intersectionality, culture of bystanders and lack of safe reporting.

This exercise can be repeated in future to monitor progress, implement learnings and aid continuous improvement.

3. Sexual harassment policy review/update

• Agree policy objectives: This will include legal compliance and minimising risks. It may also include providing a safe forum for listening and learning, supporting employees, being a market leader or achieving other cultural objectives. If zero tolerance is the aim, ensure it is clear what this means in practice.
• Scope and drafting:
  • Explain what sexual harassment is and the behaviours expected/required.
  • Explain the procedure to be followed to report and address concerns.
  • Set out the responsibilities of the employer and employees in various roles at each stage.
  • Address specific environmental factors relevant to the organisation and, importantly, mitigations to minimise the risk.
  • Address confidentiality, being clear about what this means in practice.
  • Be easy to understand, comprehensive and use appropriate and inclusive language.
  • Build in a mechanism to learn and improve.
• Relationship with other policies: Many employers are now opting for a dedicated anti-sexual harassment policy. This must work alongside existing policies such as those related to grievance, disciplinary, equality, whistleblowing, health and safety, and data protection.
• People-centred: This can include support such as access to wellbeing services for all involved and taking a trauma-informed approach which recognises the impact these matters can have (such as minimising the need to retell distressing accounts).

4. Training

• Addressing the specifics of your organisation, risks, policy and culture.
• Tailored to the various affected groups including senior stakeholders, HR teams, managers who may have a role implementing the policy, and all those who may use the policy.

5. Data privacy

In all the above steps, factor in data privacy by default and by design. This includes where existing data is being used for new purposes and as you manage issues and learning. Consideration should be given to the scope of privacy notices and the role of data protection impact assessments.

What next?

Going forward, the government has highlighted its intention to expand the new duty to require employers to take all reasonable steps to prevent harassment occurring (not just "reasonable" ones). The more progress that can be made now, the better placed your organisation will be for further developments and the safer your workplace will be.

Webinar on investigations: sensitive cases for HR professionals

We are hosting a webinar on Wednesday 30 October, which will look at the complexities of investigations where a whistleblowing case intersects with allegations of sexual harassment. If you would like to attend, you can register here.

Key legal references

• You can find the new duty to prevent harassment in The Worker Protection (Amendment of Equality Act 2010) Act 2023 (the Act).
• The Act adds a new section 40A to the Equality Act 2010.
• Current EHRC technical guidance on sexual harassment and harassment at work.
• EHRC consultation on updates to its technical guidance on sexual harassment and harassment at work.