UK: “Preparing to prevent” sexual harassment – what should employers be doing ahead of the new duty coming into force?

The new duty may be viewed as part of a continuing trend towards accountability for workplace sexual harassment, in light of the ongoing impact (since October 2017) of the “MeToo” movement.

In summary:

• the legislation places a new duty on employers to take “reasonable steps” to prevent sexual harassment of their employees. This adds an additional layer to the existing prohibition on committing sexual harassment;
• the duty applies to both sexual harassment by an employee’s own workers and also by third parties, such as clients and customers;
• while failure to prevent sexual harassment does not give rise to a freestanding cause of action, Employment Tribunals will have the power to uplift compensation for harassment by up to 25% where the duty is breached;
• the duty can also be enforced by the Equality and Human Rights Commission (“EHRC”), which has powers including to conduct investigations and intervene in disputes. 

Employers already have a potential defence to claims of harassment of any type committed by one of their workers, where they can show that they took “all reasonable steps” to prevent the harassment. However, this has been found to be a high bar, and many employers have found it difficult to show that they have taken all such steps in the context of claims.

The new duty goes one step further in relation to sexual harassment only, in that employers can face additional liability if they fail to take positive steps to prevent sexual harassment. The key question that employers need to grapple with is what constitutes “reasonable steps” under the new duty.

Updated Guidance  

On 26 September 2024, the EHRC updated its existing Technical guidance on Sexual Harassment and Harassment at work (the “Updated Guidance”) to take account of the new duty and also published a shorter-form guide for employers on preventing sexual harassment at work. 

The Updated Guidance makes it clear that the new duty is an anticipatory and proactive duty, i.e. employers cannot simply wait until an incident of sexual harassment takes place. Rather, the duty requires that employers should:

• anticipate scenarios when its workers may be subject to sexual harassment in the course of employment and take action to prevent such harassment taking place; and
• where sexual harassment has taken place, take action to stop it happening again.

How should employers determine “reasonable steps”

It is clear that the risks of sexual harassment and potential means to address these will differ from workplace to workplace. Helpfully however, the Updated Guidance sets out a process that employers should generally follow to determine and implement “reasonable steps” to prevent sexual harassment. 

This involves:

• carrying out a risk assessment and considering the risks of sexual harassment occurring in the course of employment, both in respect of employees and third parties. The areas of risk will depend on the particular workplace, including the ways in which and locations at which work is carried out, but this could include an assessment of risk factors including (for example):
  
  • areas of power imbalance and job insecurity;
  • lone working and late-night roles;
  • the regularity of social events and alcohol assumption;
  • roles with a material client or contractor facing element;
  • diversity issues (e.g. women working in predominantly male businesses / teams).
• considering what steps it could take to reduce those risks and prevent sexual harassment of their workers;
• considering which of those steps it would be reasonable for it to take. As part of this, employers will be able to take into account business-specific factors, including the size and resources of the employer and the time, costs and potential disruption of taking a particular step, weighted against the benefit it could achieve; and
• implementing those reasonable steps.

Even where an employer is of limited size and resources, this would not exempt them from undertaking the process outlined above, even if it was ultimately decided that there were no / minimal “reasonable steps” to prevent sexual harassment.

What might “reasonable steps” look like?

While there is no “one size” fits all policy and the new duty has not yet been tested by the Employment Tribunal, at this stage we think that the following are likely to be examples of “reasonable steps” employers may need to take to prevent sexual harassment (taking into account the case studies in the Updated Guidance):

• putting in place harassment policies, or reviewing and updating existing harassment policies, to ensure sexual harassment is covered and the behaviours expected from staff made clear. Policies should be audited and reviewed regularly to ensure they remain fit for purpose; 
• auditing and reviewing processes already in place to prevent sexual harassment to check if they are fit for purpose, including any reporting channels; 
• ensuring there is regular, effective and comprehensive training on sexual harassment, to educate staff about sexual harassment and their role in preventing it. This would include training on the employer’s policies and procedures and where to get support. The training should be tailored to not only different parts of the business but also different audiences within the business, e.g. additional training for managers to support them in dealing with complaints;
• consulting with unions, works councils and other employee representative bodies (including any diversity networks) to identify risks of sexual harassment and steps which could be taken to address these;
• identifying senior leaders to lead efforts to prevent sexual harassment and engage with the representative bodies (including any diversity networks) and the workforce in general to discuss and identify the risks of sexual harassment within the organisation;
• encouraging a “speak up” culture and committing to promptly investigate and take effective disciplinary action where necessary;
• auditing past performance on harassment;
• setting up evidence hubs for managers to record details of all reported incidents and evidence of sexual harassment, formal and informal, and making a commitment to review the evidence periodically to identify trends and appropriate actions; 
• establishing regular staff “climate” surveys to review staff experiences and identify areas of risk / steps needed to prevent sexual harassment;
• engaging directly with clients and contractors to make them aware of the employer’s stance on tackling sexual harassment and that this will not be tolerated. This could take the form of (for example) engagement via personnel responsible for client and contractor relationships and/or written communications containing policy statements and any practical arrangements;
• putting in place rigorous and confidential processes for resolving complaints of sexual harassment, to ensure that complaints are appropriately addressed, and preventative steps are identified.

A sign of more to come?

It is possible that the new duty is a sign of further changes to come, as the new Labour government has indicated that it may enhance the level of obligation to a requirement to take “all reasonable steps” (rather than just “reasonable steps”) to prevent sexual harassment and/or potentially extend the duty to all forms of harassment. In that case, the employers who take active steps to address the new duty to protect harassment will be best placed to deal with any new obligations, as well as mitigating the new risk areas arising from any upcoming legislation.