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New Duty to Prevent Sexual Harassment at Work: Updated Guidance Now Published
4th October, 2024 by Hannah Pryce
From 26 October 2024, a change in the law will place a new positive duty on employers to prevent sexual harassment in the workplace. To help employers prepare, the Equality and Human Rights Commission (“EHRC”) has now published its updated technical guidance on sexual harassment at work.
The new Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force on 26 October 2024.Employers will then have a legal obligation to take “reasonable steps” to protect their workers from sexual harassment. If an employer breaches this new preventative duty, Employment Tribunals can increase any compensation for sexual harassment by up to 25% and the EHRC can take enforcement action against them.
To help employers understand this change and the actions they can take to prevent and respond to sexual harassment, the EHRC has updated its technical guidance on sexual harassment at work following a recent consultation.
Some of the key points to note from the updated guidance are as follows:
- Employers should not wait until they receive a complaint of sexual harassment to take action. The preventative duty requires employers to anticipate scenarios when their workers may be subject to sexual harassment at work, and take action to prevent this from happening (or, if it has already occurred, to stop it from happening again).
- The preventative duty only applies to sexual harassment. It does not apply to harassment related to a protected characteristic (including sex), nor does it apply to less favourable treatment for rejecting or submitting to unwanted conduct.
- Employers are unlikely to be able to comply with the preventative duty unless they carry out a risk assessment in respect of workers being exposed to sexual harassment.Existing risk management frameworks (for example, in respect of health and safety) could be used for this.Examples of factors to consider include workplace culture and banter, the workforce demographic and diversity, power imbalances, lone / night / out-of-hours / home working, customer-facing duties, socialising and attending events outside of work, the presence of alcohol, and the effectiveness of policies, procedures, training and previous responses to reports of sexual harassment. Employers should then consult with employee representatives about the action they propose to take.
- Whether or not an employer has taken reasonable steps to prevent sexual harassment is an objective test, and will depend on the facts and circumstances of each situation.Each employer’s situation will be different, depending on its size, nature, resources and specific risk factors.
- The preventative duty also extends to employers taking reasonable steps to prevent and respond to the sexual harassment of workers by third parties, such as clients and customers. However, a worker cannot bring a stand alone claim in the Employment Tribunal for third party harassment.
The updated guidance can be accessed here.
Hannah Pryce comments:
Employers should review the updated guidance and take steps to prepare for the new preventative duty now (in advance of 26 October 2024).This will most likely include carrying out a risk assessment in respect of workers being exposed to sexual harassment at work by colleagues and/or third parties, implementing or updating anti-harassment policies, and providing training and regular refreshers to staff.
If you have any questions regarding the upcoming changes or need advice on preventing sexual harassment in the workplace, or would like us to deliver a training session on this subject, please contact a member of the team here.
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