How to navigate the new duty to prevent sexual harassment

Since 26 October 2024, employers are under a new obligation to take reasonable steps to prevent sexual harassment of their employees. It applies to all employers and given that it is an anticipatory duty, it is crucial that proactive action is taken.   

What is sexual harassment?

Sexual harassment is when a person is subjected to unwanted conduct of a sexual nature which has the purpose or effect of either violating their dignity, or creating an intimidating, hostile, degrading, humiliating, or offensive environment. Conduct ‘of a sexual nature’ can include a range of behaviour, for example, sexual comments or jokes, propositions and sexual advances, unwelcome touching, hugging, massaging, or kissing.

What is the new preventative duty?

As of 26 October 2024, employers are under a legal duty to prevent sexual harassment of their workers. They must take reasonable steps to prevent it. Employers should not wait until a complaint of sexual harassment has been raised before they take any action.

Employers need to take reasonable steps to prevent sexual harassment committed by workers but also by third parties which could include customers, clients, self-employed contractors or freelancers, service users, patients, students, friends and family of colleagues, delegates at a conference and members of the public.

What are reasonable steps?

The Equality and Human Rights (EHRC) ‘Sexual harassment and harassment at work: technical guidance’ explains that an employer should firstly consider the risks of sexual harassment occurring in the course of employment. Secondly, they should consider what reasonable steps it could take to reduce those risks, and then finally they should implement those reasonable steps.

In assessing the risks, employers need to consider all circumstances when sexual harassment could occur. The duty includes preventing sexual harassment in the workplace or in any other place where the worker is working, for example, when the worker is attending an external meeting or conference. It can also include other circumstances in which the worker is not actually working but that are connected with work, for example, a social function.

What are reasonable steps to take will vary from employer to employer. The law does not, therefore, list specific steps an employer should take.

Check out BrAInbox for instant answers to questions like:

What do I need to do to comply with the new sexual harassment laws?

What situation would be classed as sexual harassment?

What do I do if someone makes a sexual harassment complaint about a senior member of staff?

Whilst it does not give an exhaustive list, the EHRC has set out eight practical steps to illustrate the type of action an employer could take to prevent and deal with sexual harassment in the workplace:

1.     Develop an effective anti-harassment policy

2.     Engage staff to understand where any potential issues lie and whether the steps are working

3.     Assess and take steps to reduce risk in your workplace

4.     Use a reporting system that allows workers to raise an issue

5.     Workers, including managers, and senior staff, should receive training on a regular basis

6.     When a complaint is made, take steps immediately to resolve the complaint

7.     Take reasonable steps to prevent sexual harassment from third parties

8.     Log the steps you have taken and continue to review their effectiveness

What could happen if an employer does not comply with this new duty?

Whilst a standalone claim cannot be brought in an employment tribunal for breach of this preventative duty, if an employer does not comply, the EHRC has the power to take enforcement action against the employer. This enforcement action can be taken by the EHRC even if an incident of sexual harassment has not taken place.

Where there has been an incident of sexual harassment and a claim is brought in an employment tribunal, an employer can be held vicariously liable for the acts of its employees. Whether the preventative duty has been complied with, and to what extent, must be considered by the tribunal. If the tribunal is satisfied that the preventative duty has been breached, it can increase any compensation awarded to the claimant by up to 25%. 

Contact our HR Documentation Team to request a sexual harassment policy. Also, reach out to our HR Advisory Team for sample risk assessments, checklist, as well as forms that can be used to record completed training and your action plan.