Taking reasonable steps to prevent sexual harassment: preparing for the new duty

Article updated September 2024

Since the allegations against Harvey Weinstein in 2017 ignited conversations about sexual harassment inside and outside the workplace, investigative journalists have helped to uncover countless troubling stories of employers who have either failed to act or actively covered up the harassing behaviour of staff. A Trade Union Congress poll in 2023 discovered that 43% of the women polled had experienced at least three incidents of sexual harassment at work, revealing how widespread these experiences are.   

Last year Parliament passed The Worker Protection (Amendment of Equality Act) Act 2023 (the “Act”), as a first step to enhance scrutiny of employers’ actions to prevent sexual harassment. The Act (which comes into force on 26 October 2024) includes a positive obligation on employers to take ‘reasonable steps’ to prevent sexual harassment of their employees in the course of their employment. Importantly this duty is focused on preventing unwanted conduct of a sexual nature only and does not extend to preventing unwanted conduct related to sex. 

New guidance 

The Act is supplemented by updated technical guidance, a draft of which was published for consultation on 9 July and the final version issued on 26 September 2024. Separately, an updated Employment Code of Practice is due to be published “in due course.” The guidance sets out in detail what steps employers should be taking in order to comply with their duty under the new legislation. A link to it can be found here. Alongside the technical guidance, the EHRC has also published a useful eight-step guide for employers on preventing sexual harassment at work, which is available here. 

The guidance makes clear that the positive duty covers sexual harassment by third parties e.g. clients, customers, contractors or even members of the public. This is a surprise, as third-party harassment was removed from the Act by the House of Lords and as a result, an individual employee cannot bring a stand-alone claim against their employer for sexual harassment by a third party. However, the guidance clarifies that third party harassment could potentially amount to an act of indirect discrimination by the employer, if (for example) the employer has failed to take steps to prevent it and that puts women at a particular disadvantage in comparison to men. It could also lead to a claim of direct discrimination if (for example) an employer fails to take steps to address a complaint from a male employee, when the employer has taken complaints made by female employees more seriously. This means that it is necessary to factor third party harassment into policies, procedures and training. So, while an employee still can’t bring a tribunal claim against an employer for third party harassment alone, the guidance sets an expectation that employers must still consider how to prevent harassment by these third parties. 

What are the “reasonable steps” to comply? 

What is regarded as ‘reasonable’ will vary according to different sectors and types of workplace, and according to the size and resources of the employer. The final guidance now makes it clear that an employer is unlikely to be able to comply with the preventative duty, unless it carries out a risk assessment, to identify the risks and the control measures necessary to minimise those risks. The guidance also makes it clear that the likely effectiveness of a particular step, and the time, cost and potential disruption of taking it, will be taken into account in determining what is ‘reasonable’. It includes various, detailed, examples of what might amount to reasonable steps for different types of employers, including:  

• Updates to policies and procedures to set out expected behaviours and channels for reporting complaints 

• Training with managers and staff to raise awareness of sexual harassment and of relevant policies and procedures 

• Specific training for managers to support them in dealing with complaints 

• A process for reviewing the effectiveness of policies and training 

• A timetable for refresher training 

• Taking steps to ensure staff are encouraged to raise complaints when they experience or witness sexual harassment 

• Full consideration of the risks of third-party harassment, including the types of third parties staff may come into contact with (and if they will) 

• Notifying any self-employed individuals on site or with access to staff of the employer’s policies. 

Anticipatory/preventative steps are said to be central to preventing sexual harassment from occurring – which means that a form of risk assessment is advisable for all employers. 

In short, the guidance sets a high bar! 

25% uplift to compensation 

The new duty also means that where an individual succeeds in a sexual harassment claim, an uplift of up to 25% may be applied to an award of compensation. This is similar to the ACAS uplift for failure to comply with the ACAS Code of Practice on disciplinary/grievance procedures. An uplift can only be applied to compensation awarded and a failure by an employer to comply with the new duty does not give claimants a standalone action. The amount of uplift is based on the extent of non-compliance with the duty, again very similar to the ACAS uplift. 

Where a claimant is claiming workplace sexual harassment, it is therefore likely they will now point to a lack of evidence of policies, procedures or training aimed at preventing the abuse they suffered. 

EHRC free-standing penalties for non-compliance 

It is worth remembering that there are also free-standing penalties and enforcement action which can be taken by the EHRC which include investigating the company, issuing a notice confirming that the employer has breached the Equality Act and requiring an action plan, and entering into a legally binding agreement with the employer to prevent future unlawful acts.  

Will the Labour Government change things? 

Labour’s New Deal for Working People, committed to “create and maintain workplaces and working conditions free from harassment, including by third parties.” This could mean that Labour intends to reintroduce employer liability for sexual harassment by third parties, and/or strengthening the potential financial impact of failing to comply with the guidance. There has been no confirmation of any firm proposals to date.  

The Birketts view – how to prepare: 

The guidance makes it clear that all employers need to be taking active steps to prepare for the new duty, as it is both a preventative and anticipatory duty. This means that employers should not wait for sexual harassment to happen before taking action. Employers should anticipate scenarios in which employees may be subject to sexual harassment in employment, and take reasonable steps to prevent it. If sexual harassment has taken place, the employer should take reasonable steps to stop it happening again. 

We would suggest the following measures for employers to focus on, in order to evidence that they have complied with the new duty: 

• Undertake risk assessments, including potential risks for individuals coming into contact with third parties, and produce an action plan setting out proposed preventative steps and how it will be monitored going forward. 

• Consider undertaking a consultation exercise with employee or union representatives to gain their insights into what can be done to reduce the risk of sexual harassment in the workplace.  

• Review policies and contracts (including those with third parties/suppliers sending staff on site). 

• Ensure you put in place proper channels for reporting concerns and complaints including options to report anonymously. Think about creating a complaints database recording outcomes and recommendations. This should include informal complaints as well as formal grievances. 

• Ensure training is rolled out on the new obligations and on the available channels for complaints. 

• Create a timetable for regularly monitoring and reviewing training and policy updates. 

Employers should keep records of any measures that they have adopted as evidence of the ‘reasonable steps’ they have taken.  

Olivia Toulson and the Employment Team can assist with policies and strategies for complying with these new obligations. Birketts’ Shaping Excellence Training team has developed a short training course on the new obligations, and also added discussion on these obligations into existing EDI training courses. For more information on relevant training please contact Jonathan Shevlane.