New duty imposed on employers to prevent sexual harassment in the workplace

A new duty will be imposed on employers to prevent sexual harassment in the workplace.  This new duty will be effective from October 2024 and will be inserted into the Equality Act 2010 by the Worker Protection (Amendment of Equality Act 2010) Act 2023.

Currently, workers are protected against sexual harassment experienced at work by their employer or its employees under the Equality Act 2010 (the “EA 2010”). It defines sexual harassment as:

1. unwanted conduct of sexual nature; and
2. such conduct has the effect of violating the victim’s dignity or creating an environment that is intimidating, hostile, degrading, humiliating or offensive.

The EA 2010 makes employers liable for sexual harassment carried out by their employees during the course of their employment, even if the employer was not aware of their actions.  However, employers may have a defence if they can show that they took all reasonable steps to prevent the harassing employee from acting unlawfully.

With some protection already in place, the new duty is set to further strengthen the laws surrounding any sexual harassment in the workplace.  There will not, however, be any legal duty on employers to prevent sexual harassment by third parties which was initially considered in the government consultation.

Below we will look at the key changes that are being introduced and what they mean for employers.

What are the changes and its aim?

From October 2024, there will be a new legal duty on employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment.  The new duty will only add to what is the current law on sexual harassment, placing a more express duty on employers to prevent sexual harassment.

Employers will be under a duty to consider what steps can reasonably be taken to ensure that sexual harassment does not take place.

The rationale for this change is that there will be a shift from employer liability after incidents of harassment, to a proactive duty before any unlawful conduct has taken place, thereby making it clear to employers that they must prioritise and take reasonable steps in the prevention of sexual harassment in the workplace.

If employers are found to have failed to take such steps, then the Equality and Human Rights Commission (“EHRC”) will have power to enforce the new duty, for example, the power to investigate suspected breaches.

Employees will not be able to bring standalone claims in the employment tribunals for a breach of the new duty.  Instead, where a successful sexual harassment claim is brought in the Employment Tribunals, an uplift to compensation in relevant claims of up to 25% may be made where an employer is found to have breached the new duty.

How will this impact employers?

It is already common for employers to highlight and train their employees on the issue of sexual harassment in the workplace under the existing legislation.  However, the effect of the new legal duty is that employers will now be required to take a more proactive step to demonstrate that they have addressed sexual harassment with their workforce.

It is currently unclear what “reasonable steps” employers are required to take and, to assist, the government has confirmed that further guidance will be published in due course and the EHRC will also issue a Code of Practice later in the year to give clarification to employers on what is considered a “reasonable step”.  “Reasonable steps” are likely to include, for example, creating an anti-harassment policy and reporting procedure, although it is important that these are clearly communicated to workers, effectively implemented and monitored and reviewed regularly.  Complaints of sexual harassment should be properly investigated and action should be taken where such wrongdoing is identified.

Although the new duty does not come into force until October 2024, employers are encouraged to start an early review of their current policies and procedures and consider the appropriate training for their employees so that they can hit the ground running once the new legal duty comes into force.  Planning ahead will give employers enough time to ensure compliance and a chance to use the opportunity to conduct a review of their workplace culture.

How can we help?

At Thomas Mansfield Solicitors, we have a great team of employment specialist lawyers who can assist with both reviewing company policies and procedures to ensure it is following the evolving law and provide tailored training package for employers on the issue. For support in adapting to the new duty and ensuring your business’s compliance, contact us on 020 7377 2829 or email [email protected].