Sexual harassment legislative updates #2: Practical tips on getting ready before they come into effect 

16 Oct

As we recently updated – New Positive Duty to Prevent Sexual Harassment at Work – Are You Ready? – on 26 October 2024 a new obligation comes into force requiring employers to take reasonable steps to prevent sexual harassment in the workplace. In this update, we summarise the Equality and Human Rights Commission’s (EHRC) 8-step guide to compliance. EHRC is the UK’s equality regulator, which issues guidance on equality law that employers and tribunals are expected to consider.

What is the new duty?

Employers are required take reasonable steps to prevent sexual harassment of staff members:

• by their own colleagues; and,
• by third parties (such as customers, self employed contractors, patients, students and conference delegates).

Proactive Duty (and not just Reactive):

• Employers must pro-actively anticipate scenarios when workers may be subject to sexual harassment and take preventative action, rather than just responding to complaints.
• In the event that sexual harassment has already taken place, an employer must take action to stop sexual harassment from reoccurring.

EHRC’s 8-step guide

Each employer should determine which steps would be reasonable for their business – and what is reasonable will vary depending on circumstances such as: sector, business size and resources, working environment, etc.

The EHRC’s helpful 8-step guide suggests various preventative actions:

• Developing an effective anti-harassment policy setting out the employer’s approach to preventing sexual harassment in the workplace including third party harassment. The policy should be a dynamic document and kept under regular review and update.
• Engaging with staff (e.g. through 1-2-1 meetings, surveys, exit interviews and open door policies), so that employers understand where any potential issues lie and whether the steps they are taking are working.
• Undertaking a risk assessment to consider factors that might increase the likelihood of sexual harassment (including by third parties) and the steps that can be taken to minimise identified risks.
• Implementing a reporting system that allows workers to raise issues either anonymously or in name. Maintaining centralised and confidential records of all concerns raised so that trends can be identified.  
• Training at regular intervals on workplace sexual harassment for all staff, including managers and other senior roles. In industries where third-party harassment is more likely, training should cover methods of addressing this.
• Knowing what to do when a harassment complaint is made, including implementing immediate protective measures as well as how to keep on top of confidentiality.
• Dealing with harassment by third parties (such as customers, clients, patients or suppliers) as seriously as harassment by a colleague.
• Monitoring and evaluating the effectiveness of any preventative measures on a regular basis and implementing changes if needed.

The consequences of non-compliance

• Enforcement Action – while breach of the new obligation will not result in a stand-alone employment law claim, the EHRC will have the power to take enforcement action including potentially requiring employers to produce action plans or even sign up to formal agreements to prevent future breaches. The EHRC could also apply to the High Court for an injunction in certain cases.
• Additional Compensation – if an employee’s harassment claim is successful the employment tribunal may order additional compensation of up to a maximum of 25% where the duty has been breached. Non-compliance may therefore have direct financial consequences.

New Employment Rights Bill

On 10 October 2024, the government released a draft Bill, which includes a series of proposed new employment laws with potential far-reaching implications. This will be subject to consultation and many of the laws will not likely come into force for some time.

The proposed Bill includes an added claim that employees can make if an employer does not take all reasonable steps to prevent third party harassment. It also provides for further regulations to set out details steps that would be regarded as ‘reasonable’, including carrying out assessments, publishing plans or policies, steps on reporting of sexual harassment and steps on handling of complaints.

As explained above, we will need to wait to see how and when any such new laws will come into force, but the draft Bill gives a good indication of the government’s approach in this area.

If you would like further advice about complying with the obligation to prevent sexual harassment in your workplace (including reviewing your current policies, procedures or training), please do reach out to our employment team: Ollie Harris, Sarah-Beth Neville or Hadie Cohen.