New employer duty to prevent sexual harassment

From 26 October 2024, employers will be under a new duty to prevent sexual harassment in the workplace. 

This additional duty, introduced by the Worker Protection (Amendment of Equality Act 2010) Act 2023 (the Act), has been on the cards for a number of years following the growth of the #MeToo movement. So what is going to change? 

The new duty

Sexual harassment is already prohibited under the Equality Act 2010 and employers can be held vicariously liable for the discriminatory actions of their employees. This new obligation will impose a separate positive duty on employers to take reasonable steps to prevent the sexual harassment of their employees, including by third parties. The Act will not, however, re-introduce sexual harassment of employees by third parties as a stand-alone claim for which employers can be held vicariously liable (as was proposed in the draft legislation). 

Employers that fail to meet this duty may face an uplift of up to 25% on sexual harassment claims brought after the Act comes into force. The Equalities and Human Rights Commission (EHRC) can also take enforcement action under its existing powers. 

Employer obligations

As discussed, employers can already be held vicariously liable for the discriminatory acts (including sexual harassment) of their employees. An employer has a defence where it can show that it took “all reasonable steps” to prevent the unlawful conduct or conduct of a similar type, and this will continue to be the case. 

The new positive duty requires employers to take “reasonable steps” to prevent the sexual harassment of its employees more widely in order to avoid the compensation uplift on a sexual harassment claim. The omission of the word “all” suggests a lower bar for employers than is required to successfully defend a discrimination/harassment claim. It remains to be seen the extent to which the tribunal’s approach to these tests will differ in practice.

Given the similarity of the existing defence to sexual harassment claims and the new duty to prevent sexual harassment, many employers will have already taken steps to prevent sexual harassment in the workplace. However, the new duty presents a good opportunity for employers to ensure policies are up to date and that employees know they exist and how to access them. 

Employers should also consider taking (and retaining evidence that they have taken) the following steps in building a successful strategy to prevent sexual harassment at work:

• Providing regular training on preventing sexual harassment in the workplace;
• taking all complaints of sexual harassment seriously and always carrying out a full and proper investigation;
• where misconduct has been proved, taking robust action against the perpetrator; and
• ensuring senior leadership and other managers give appropriately strong anti-sexual harassment messaging to employees.

The EHRC is due to update its technical guidance on sexual harassment at work prior to the Act coming into effect. This will inevitably become a useful resource for employers looking to ensure compliance with the new duty.  

Current uncertainties around the new duty

Whilst the uplift will only be available where an employee has brought a successful harassment claim that involves sexual harassment (to some extent), in considering the level of uplift to award, under the Act a tribunal could theoretically consider an employer’s failure to prevent the sexual harassment of other employees that has not necessarily had an impact on the claimant themself. 

Tribunals are also not restricted by the proximity between the time of the sexual harassment and that of the claim in awarding any uplift, i.e. the employer’s failure to prevent the sexual harassment of one of its employees months or even years before the claimant’s claim could potentially result in an uplift being awarded. 

In practice, tribunals will likely take a pragmatic approach to determining the appropriate level of uplift to award.

How can we help?

Please do not hesitate to get in touch with our employment team if you require any support on this topic, for example:

• tailored training for your HR team;
• practical training for line managers;
• a review and update of existing policies and procedures;
• a new specific sexual harassment policy; and/or
• support with investigations into allegations of sexual harassment.