June 2024


As we previously reported, from 26 October 2024, under the (not-so-concisely named) Worker Protection (Amendment of Equality Act 2010) Act 2023 – which we are calling "the Worker Protection Act" - all employers will have a brand new duty to proactively take "reasonable steps" to prevent sexual harassment of their employees in the course of their employment. How can you comply with this duty?


The current position 


Employers currently have a duty to not sexually harass their employees and job applicants and are liable for the discriminatory actions of their employees during the course of their employment. However, they can defend a harassment claim if they can show they took "all reasonable steps" to prevent the employee from the discriminatory act (or the kind of discriminatory act that took place).

 

What is the new duty? 


The existing defence will remain and employers can continue to rely on this if they face a claim. However, all employers will now also have a new mandatory duty to take "reasonable steps" to prevent sexual harassment happening in the first place. As the duty is to take "reasonable steps" rather than the "all reasonable steps" required to make out the statutory defence, this is expected to be a lower standard. This new duty also only applies to sexual harassment only, rather than harassment on any other protected grounds.


There will not be a standalone right for employees to claim against an employer for its failure to comply with this duty. Instead, where employees successfully bring a sexual harassment claim and the employer has failed to comply with its duty, any compensation may be increased by up to 25%. As well as this, the Equality and Human Rights Commission (EHRC) will also be able to take enforcement action.


What are “reasonable steps”?


We understand that the EHRC will produce guidance on what "reasonable steps" means in practice, which is expected to arrive around September 2024 following consultation with employers. While it can be tempting to simply wait and see what this guidance includes, the new obligation will apply immediately from 26 October and employers who wait until the end of the summer are unlikely to have enough time to take appropriate action. 


How far might employers be expected to go?


Under the existing technical guidance for the "all reasonable steps" defence there are limits on what employers are required to do and we expect that employers will be able to take similar considerations into account in relation to this new duty. Notably it states:

  • "an employer is entitled to weigh how effective a step might be against other factors such as the time, cost, and potential disruption that may be caused in taking the step"; and
  • "when deciding whether a step is reasonable, employers should “consider its likely effect and whether an alternative step could be more effective". 


But what actual steps should employers consider taking?


Unfortunately, there is no one size fits all and what is reasonable will likely depend on the size of the organisation, it’s resources and the particular risks. For example, a business with many lone workers or workers who frequently interact with third parties may require different steps than others. Having said that, all employers may want to consider include:


1. Risk assessment: Think proactively, not reactively. In a similar way to assessing health and safety or fire risks, employers will want to focus on taking positive steps to prevent sexual harassment from occurring in the first place, not just on establishing a legal defence if a claim happens. This might include assessing things like:

  • Where is your risk? Where and when is sexual harassment most likely to occur? Who is most likely to be affected by it? What steps do you already have in place (if any) to prevent this from happening? 
  • Policies: What policies do you have to make clear standards of behaviour and the consequences of breaching them. Are they promoted in a way that is practically accessible to the relevant staff?
  • Reporting mechanisms: Are they fit for purpose, well publicised and followed when issues arise?
  • Training: The case of Allay and Gehlen made clear that training must not simply be a tick box exercise, but must be thorough, effective and refreshed if particular issues arise. It should also take into account the particular risks for your business and specific cohorts.
  • Culture: How can you foster a culture of accountability, where employees feel they will be heard when raising issues, and where the issues will be addressed effectively?
  • Review: Keep your risk assessment under review. Consider including a mechanism to receive input from employee groups on each of the points above.

Many employers will likely already be taking at least some of these steps to prevent harassment. The key difference is that as there will be a mandatory duty to do so, you may want to consider documenting that you have assessed your risks and taken steps to mitigate them in case of any challenge.


2. Accountability: Who is accountable for ensuring your business is compliant with this duty and keeping compliance under review?


3. Other groups: While this new duty only requires employers to take positive steps to prevent sexual harassment, employers may want to be careful not to forget other forms of (non-sexual) harassment, such as harassment relating to race and sexual orientation. 


The future


This Act will be effective from 26 October 2024. If Labour win the upcoming election, it has indicated it may extend employer’s duty to take "all reasonable steps" to prevent sexual harassment in the workplace and introducing a new obligation to prevent third party harassment. These are provisions which were debated but dropped during the passage of this Act.