Sexual harassment – the new preventative duty one year on

UK employers must take reasonable steps to prevent sexual harassment, including third-party harassment, clear policies, training, and risk assess.

Learning points for employers

Since 26 October 2024, UK employers have been under a positive duty to take reasonable steps to prevent sexual harassment. The duty sits alongside existing Equality Act 2010 protections and means that where employees are found to have suffered workplace sexual harassment a Tribunal can award an uplift of 25% to their discrimination compensation where they find there has been a breach of the duty. The Equality and Human Rights Commission (EHRC) are also able to investigate and require action plans where the duty is not being upheld.

EHRC Technical Guidance (updated Sept 2024) and Acas guidance on preventing sexual harassment are useful reference points for employers looking to navigate the duty.

Third party harassment

The precise liability in respect of the duty to prevent third-party harassment has caused some confusion. The EHRC technical guidance confirms that the preventative duty covers sexual harassment by third parties even though an employee cannot currently bring a standalone claim for third-party sexual harassment under the Equality Act.

This means that third-party harassment may lead to enforcement action by the EHRC and/ or a Tribunal uplifting a compensation award by up to 25% in where there has been a failure in the duty to prevent sexual harassment. The way the law is currently worded means this uplift can be applied where compensation for discrimination in relation to any of the protected characteristics occurs, provided it can be shown that the employer breached its duty to prevent sexual harassment, including by third parties.

Looking ahead, the Employment Rights Bill proposes to re-introduce direct employer liability for third-party harassment in respect of all protected characteristics and types of harassment. This protection will be further buttressed by making complaints of sexual harassment public interest disclosures, extending whistleblowing protection to those who complain of sexual harassment.

‘Reasonable steps’

No definitive list of actions is available to employers to guarantee compliance. What is ‘reasonable’ depends on the size, resources, sector and risk profile of the employer. That said, employers who are better prepared regarding the duty tend to:

• Assess risks in the places and situations where harassment could occur (e.g. night and/ or lone workers)

• Choose targeted, proportionate controls designed to make a real-world difference

• Carefully record what they’ve done (e.g. policies, training, communications, event plans, contractual clauses and the monitoring data) and

• Track the effect these are having with a view to reassessing their effectiveness

Where employers fall short appears to be on operational detail as opposed to intent. For example, incomplete or generic policies with poor staff communication may leave staff unsure what to do or who to speak to if they experience or see harassment at work. Poor record-keeping can also increase the risk of sexual harassment escalating or going unchecked and increase the risk of enforcement action and claims.

Another area where some confusion might arise is whether staff should intervene to prevent harassment, which may be down to a lack of clarity in policy and/ or the lack of training to give staff confidence to do so.

Existing guidance highlights

The EHRC technical guidance frames the duty as anticipatory: i.e. employers should plan for foreseeable risks rather than wait for complaints. It expects a risk-based approach, visible reporting routes (including options outside a defined line of reporting set out in a policy), swift, victim-centred complaint handling (whether formal or informal), steps to protect those who raise complaints from victimisation, and regular role-specific training (including for managers and for staff more broadly). The EHRC guidance is clear that training must be relevant and refreshed—one-off, generic sessions are not enough.

The Acas guidance is focussed more on practicalities. It encourages employers to work out their risks, decide what steps are reasonable in that employer’s specific context, and implement them. It gives examples of higher-risk situations and encourages employers to weave prevention into policies, supervision, training, event planning and contracts. The emphasis is on employers doing the basics well and consistently, and being able to show how steps taken reduce risk on the ground. 

One year on – what does ‘good practice’ look like?

Because the duty to prevent sexual harassment is a proactive one, it is sensible for employers to take a risk-led, visible, embedded and evidenced approach. If employers have safeguarding obligations, then this will be very familiar, but if not then employers may need to consider how best to incorporate the issue into their workplaces practices and culture.

That could be achieved by a very visible and accessible policy and training regimen and having senior leaders within an organisation be high-profile and vocal advocates for the measures being put in place.

Clear record-keeping of the work done by employers, as well as clear evidence of ongoing monitoring and review of steps taken, will ultimately put employers in the best position to reduce risk and, where necessary, to show a court or tribunal that they have met the duty to take reasonable steps in their specific circumstances.

To cover acts by third parties, employers should consider how they will go about showing that they have taken suitable positive steps to prevent harassment by third parties as well as their own staff. This will likely involve further analysis and assessment of where these risks will occur and how these can be mitigated or how policy and training might better protect staff from harassment. In some environments this may extend to setting behavioural expectations for third parties using services and/ or visiting places of work such as customers, contractors, suppliers and the general public.

Conclusion – one size does not fit all

There are clear guides and indicators for employers to help them work out specifically what the duty to prevent sexual harassment means for their organisation. This may be the key takeaway for employers, in that the right approach will look slightly different in each employer’s own case.

Certainly, employers that can evidence a careful assessment of risks, creating organisation-specific policy which is rigorously implemented, training, cultural integration, regular re-assessment and adaptation (where needed) will be in a stronger position to defend sexual harassment claims and to avoid a tribunal concluding that they have breached the duty as it stands. It will also put employers in a stronger position in preparation for the expected reintroduction of direct third party harassment claims.

The following ‘checklist’ is not designed to be exhaustive or definitive, but should help employers to take the right steps moving forward, whether they have already addressed the new duty or are looking to do so now.

Checklist

1. Board/ senior leadership oversight – do you have a named senior employee / trustee who has accountability for the preventative duty?

2. Risk assessment – has this been carried out to consider the work environment and work-related environments (e.g. staff parties)?

3. Policy updates – have you considered/ cross-referred relevant policies (e.g. disciplinary)?

4. Multiple reporting routes – are these available, confidential and accessible?

5. Role-specific training – has this been given and is it or will it be refreshed regularly?

6. Event planning – have you factored your duty to prevent harassment into event planning?

7. Data and review – do you track steps taken, as well as any incidents or trends that occur?

8. Victim-centred response – does your system of reporting and investigating provide suitable protection to victims, including as to retaliation?

9. Evidence – do you have a clear evidence trail of your policies, training logs, board minutes, complaint handling etc?      

If you would like to discuss any aspect of this article further, please contact our employment team on 0113 244 6100. 

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The information in this article is necessarily of a general nature. The law stated is correct at the date (stated above) this article was first posted to our website.

Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.