Updated technical guidance published on the new duty to prevent sexual harassment

A new duty to prevent sexual harassment in the workplace is being introduced under the Worker Protection (Amendment of Equality Act 2010) Act 2023 (the Act). The new duty comes into force on 26 October 2024.

What is the new duty?

The Act imposes a positive legal duty on employers to take reasonable steps to prevent the sexual harassment of their workers in the course of their employment.

In other words, employers must take proactive active steps to anticipate scenarios where workers may be subject to sexual harassment in the workplace and take action to prevent it. If sexual harassment does take place, employers must take steps to ensure that it doesn’t happen again.

To assist employers with this new duty, the Equality & Human Rights Commission has updated its existing Technical Guidance on sexual harassment and harassment at work (EHRC Guidance). The amends to the EHRC Guidance on the preventative duty were subject to consultation earlier this year, and the final version was published on 26 September 2024. Please note that the final version of the EHRC Guidance contains additional detailed examples and amendments on the preventative duty to reflect comments made during consultation (as well as some general updates to the guidance as a whole). Employers who have only considered the consultation draft should therefore now review the final guidance document to ensure compliance. Please contact a member of the Employment Team if you would like further guidance on the amendments made.

In addition, the EHRC has published an 8-step guide for employers on preventing sexual harassment in the workplace.

What is sexual harassment?

Sexual harassment is conduct of a sexual nature which has the purpose or effect of violating a worker’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. The EHRC Guidance points out that this can be from someone of the same or a different sex, and that sexual conduct that was mutual in the past can become unwanted at a later stage.

Examples include sexual comments or jokes, displaying sexually graphic pictures, propositions and sexual advances, intrusive questions about a person’s private or sex life or a person discussing their own sex life, sending sexually explicit emails or text messages, and unwelcome touching.

What are ‘reasonable steps’?

The new preventative duty requires employers to take reasonable steps to prevent sexual harassment by their own workers as well as by third parties such as clients, contractors, customers, and/or members of the public.

According to the EHRC Guidance, what is ‘reasonable’ will vary from employer to employer. It is an objective test and will depend on the facts and circumstances in each case. The EHRC Guidance sets out a detailed list of factors that might be relevant, including the size and resources of the employer, the likely effect of taking a particular step, whether concerns about sexual harassment have been raised, any relevant regulatory standards that apply, and whether steps already taken have been effective or ineffective. 

The EHRC Guidance suggests that an employer should take the following approach:

1. consider the risks of sexual harassment occurring in the course of employment;

2. consider what steps it could take to reduce those risks and prevent sexual harassment of its workers (an employer is unlikely to be able to comply with the preventative duty unless it has carried out a risk assessment);

3. consider which of those steps it would be reasonable for it to take;

4. implement those reasonable steps;

5. keep those reasonable steps under regular review and repeat the above process regularly.

A number of helpful illustrative examples are set out in the EHRC Guidance in terms ‘reasonable steps’ an employer could take. These include reviewing the effectiveness of policies and procedures, setting up specific training for managers, running refresher training for all staff, setting up anonymous reporting channels, and making a record of all reported incidents of sexual harassment and keeping that under regular review.

What is meant by ‘in the course of employment’?

This phrase has a wide meaning and will include acts in the workplace or any other place where the worker is working, e.g. attending a training course / external meeting. It might also include other circumstances where the worker is not working but what they are doing is connected to work, e.g. after-work team drinks. Each case will be fact sensitive.

What are the implications if an employer breaches the new duty?

The Equality & Human Rights Commission (EHRC) can take enforcement action against an employer that has not complied with the duty to prevent sexual harassment. Workers can report concerns directly to the EHRC, which can take enforcement action against an employer even if no incidents of sexual harassment have taken place.

The EHRC can:

• investigate an employer;
• issue an unlawful act notice requiring an employer to prepare an action plan;
• enter into a formal, legally-binding agreement with an employer to prevent future unlawful acts;
• apply for an injunction to prevent an employer from committing an unlawful act.

In addition, where an employer succeeds in a tribunal claim for sexual harassment and is awarded compensation, the Tribunal can uplift that compensation by up to 25% if it considers that the employer has not complied with the duty. However, an employee will not have a standalone claim for breach of the duty by an employer.

What steps do employers need to take now?

First and foremost, employers should note that compliance with this new duty is a continuing process. Whilst the duty comes into force on 26 October 2024, many employers will still be putting in place and building on actions to demonstrate compliance after that date. So, whether you have already taken measures to comply, or done absolutely nothing, there’s still time to do more.

Also, bear in mind that the new duty may be strengthened in the future. The new government has suggested that it might strengthen the duty to make it an obligation to take “all” reasonable steps.

Employers should now review the EHRC Guidance and the 8-step guide to identify what compliance looks like for their organisation. There are lots of helpful examples given throughout.

Top priorities however should be: