Taking reasonable steps to prevent sexual harassment in the workplace: what employers need to know about the new duty

Currently, the UK law already prohibits sexual harassment in the workplace and makes employers potentially liable for such harassment when it is carried out by their staff.

However, from 26 October 2024, employers will have a positive legal duty to take reasonable steps to prevent sexual harassment in the workplace. This includes not only sexual harassment by staff, but also by third parties such as customers or clients.

What is preventative duty?

This new preventative duty requires employers to take proactive, reasonable steps to safeguard their workers from harassment, including sexual harassment. It is crucial for employers not to wait until an incident occurs before taking action. Instead, they must actively assess potential risks and create an environment where sexual harassment is prevented before it happens. This includes addressing situations where workers might be vulnerable to such behaviour during their employment. If an incident of sexual harassment does occur, the duty also obliges employers to act decisively to prevent any recurrence.

What are reasonable steps?

What would be considered as reasonable steps will vary, depending on factors such as the employer’s size and resources, the nature of the working environment, the sector in which the employer operates, the risk present in the workplace and the nature of any contact with third parties.

The Equality and Human Rights Commission (EHRC) have published technical guidance together with an eight-step guide for employers on preventing sexual harassment at work. The guide makes it clear that the eight steps identified are not an exhaustive list, but implementing the steps should help an employer take positive action to prevent and deal with sexual harassment. The eight steps are:

• Developing an effective anti-harassment policy
• Engaging with staff
• Assessing and taking steps to reduce workplace risk
• Reporting
• Training
• Handling harassment complaints
• Dealing with third-party harassment
• Monitoring and evaluating actions

The technical guidance makes it clear that employers will likely fail to comply with the preventative duty unless they conduct a thorough risk assessment and develop a clear action plan. This plan should outline the specific preventative measures to address any identified risks and include a strategy for ongoing monitoring.

It will also be key for employers to put in place a Sexual Harassment policy, clearly setting out what conduct is unacceptable, how staff can report inappropriate conduct and the process that will be followed.

Consequences of not complying

If employers do not comply with the new preventative duty, by failing to take reasonable steps, the EHRC can take enforcement action. In addition, where a Tribunal claim involving sexual harassment is successful, the amount of compensation could be increased by up to 25% where an employer is found to have breached this new duty.

Are there other policies to be aware of?

This new preventative duty is the latest of several changes to the legal rights of employees over recent months. There have also been changes to flexible working rights, paternity leave entitlements and the introduction of Carer’s leave. It is important that your policies and procedures are updated to reflect these changes and that managers are trained on the new processes.

How our Employment Law team can help

Our Employment Law team can support you in drafting and/or updating your business’s Sexual Harassment policy and Anti-harassment and bullying policy. We can also advise and assist with the training of staff and other key steps you could consider putting in place.