From 26 October 2024, every employer has a legal duty to take proactive measures to prevent sexual harassment in the workplace. This change in the law comes at a time where sexual harassment claims against well-known TV presenters and businessmen are dominating the headlines.

Previously, under the Equality Act 2010, an employer could defend a harassment claim if they could show that they had taken all reasonable steps to prevent it from happening, but employers were not legally required to take those steps.

The Worker Protection (Amendment of Equality Act 2010) Act 2023 introduces a new proactive duty on employers to take reasonable steps to prevent (specifically) sexual harassment in the workplace.

It will not apply where other forms of harassment are alleged (for example, harassment related to disability, age, religion or belief). It will also not apply if the harassment is generally related to sex (male or female) but is not sexual in nature.

In this article by Sara Patel, Employment Law specialist at Banner Jones Solicitors, explains that whilst the duty doesn’t come into force until 26 October 2024, employers should be taking steps now to ensure they are in a position to comply from day one.

What is sexual harassment?

Sexual harassment is unwanted behaviour of a sexual nature.

The Equality Act 2010 sets out the law on sexual harassment which protects the following people at work:

• employees and workers;
• contractors and self-employed people hired to personally do the work; and
• job applicants.

To constitute sexual harassment, the unwanted behaviour must have either:

• violated someone's dignity, whether it was intended or not; or
• created an intimidating, hostile, degrading, humiliating or offensive environment for them, whether it was intended or not.

How can you and your business prevent sexual harassment? 

The first step for employers is understanding what sexual harassment is and educating their workforce.

Sara explains

“Employers should be proactive in how they prevent and tackle sexual harassment in the workplace. It is important not to look at this like a ‘tick-box’ exercise. Employers will need be able to demonstrate that they have considered the scenarios where sexual harassment could happen and show evidence of the reasonable steps they have taken to prevent it”.

Some examples of reasonable steps to prevent sexual harassment in the workplace include:

• Policies and procedures: Whilst a standalone policy won’t change culture or prevent sexual harassment from happening, it is important to have written policies and guidance on dealing with these matters. Policies should include an explanation of what sexual harassment is legally and give examples of what it is, as well as outlining the responsibilities of all staff in preventing and addressing it. You may also wish to update or implement a Relationships at Work policy as there can sometimes be a heightened risk in the power imbalance between a manager and someone they manage being in a relationship, which can give rise to sexual harassment claims.
  
  
• Training and development: There should be regular training sessions for all staff so that they understand what sexual harassment is and their role in preventing and addressing it. Line managers and supervisors in particular, have an important role in identifying, challenging and dealing with any unfair treatment, including, and in particular given the new proactive duty, sexual harassment. Managers therefore need to have adequate training, education and guidance to enable them to act. 
  
  
• Reviewing and updating grievance and disciplinary procedures: There needs to be a clear process for workers to follow when making complaints about sexual harassment. Employers need to respond to these complaints promptly, carrying out a fair and thorough investigation. Any evidence of sexual harassment should be investigated and dealt with under the disciplinary procedure. Employers need to act swiftly where there are allegations of sexual harassment, and where appropriate, a clear message should be sent out to employees that such behaviour will not be tolerated .
  
  
• Organisational and cultural change: Executive and senior members of staff have a defining influence on the culture of a business and its working environment. They set the tone for expected behaviour in the workplace. It is therefore important that senior members of staff ensure they demonstrate the values and behaviour that underpin dignity, respect and inclusion. 
  
  

There will be no “one size fits all” approach to the new proactive duty, and compliance will require regular monitoring.

What happens if you don’t comply?

Whilst a worker cannot bring a free-standing claim for breach of this new legal duty, if the Employment Tribunal makes a finding of sexual harassment in the course of employment, they must consider whether the employer has complied with the new positive duty. If the Employment Tribunal finds there has been a failure to comply with the duty, they may uplift any award of compensation to the employee by up to 25%.

In addition to an increase in compensation to an employee, the Equality and Human Rights Commission (EHRC) may seek an action plan from the employer or require them to enter into a binding agreement under which they commit to bring about change (with the possibility of a court injunction if necessary).

It goes without saying that the harm that can be done to businesses who have failed to protect their workers, or treat them fairly, can be long-lasting and detrimental, causing financial harm to business and significant difficulties with recruitment. Just look at the bad publicity surrounding the Post Office Horizon scandal and the revelations of systematic abuse of female staff at Harrods.  

How can we help you?

Our experts at Banner Jones Solicitors can assist you by providing advice on the preventative steps  your business can take, including drafting policies to help protect your business and delivering training to you and your staff, so please reach out to our Employment Team for advice at employment@bannerjones.co.uk or call the team on 01246 605132.

Find out more about Sexual Harassment Training for businesses here