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

On 26^th October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 came into force, placing new, positive duties on employers in relation to prevention of sexual harassment of employees, including by third parties. For employers in the hospitality sector, with numerous staff in customer-facing roles, compliance with this duty may be particularly challenging.

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. 

While employers already have a defence if they took "all reasonable steps" to prevent harassment, this is a high bar to meet. The new duty increases liability if employers fail to take positive actions against sexual harassment specifically. The core question is defining "reasonable steps." For the hospitality sector, the challenge is even greater due to high customer interaction and alcohol-related risks. Balancing control over third-party behaviour with legal obligations will be crucial for hoteliers and F&B operators.

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.

One of the examples within the Updated Guidance suggests that reasonable steps to prevent sexual harassment by third parties could include displaying notices, encouraging staff to report any instances of third-party harassment that occur, and developing a protocol for how reports of third-party sexual harassment will be dealt with.

How should employers determine “reasonable steps”?

Risks of sexual harassment vary across workplaces, especially with higher third-party harassment risks in sectors such as hospitality. The Updated Guidance offers a process for employers to define “reasonable steps” in preventing 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 consumption.
  • roles with a material client or contractor facing element;
  • diversity issues (e.g. women working in predominantly male businesses / teams). 

It is evident that a number of these risk factors will be particularly relevant for employers in the hospitality sector, including job insecurity, a high level of customer interaction, alcohol, power imbalances and late-night working;

• considering what steps it could take to reduce those risks and prevent sexual harassment of their workers;
• determine which steps are reasonable, considering business-specific factors such as size, resources, costs, and potential disruption versus the benefits; 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?

With no fixed template for compliance and the new duty untested in the Employment Tribunal, here are actions employers could take to prevent sexual harassment, based on Updated Guidance case studies:

• Implement or refresh harassment policies that clearly define expectations and are regularly audited; 
• Review existing anti-harassment measures, including reporting channels, for effectiveness; 
• Deliver targeted, regular training on harassment prevention, policies, and support resources. Managers may need additional training on handling complaints; 
• Collaborate with unions, councils, and diversity networks to assess risks and brainstorm solutions; 
• Appoint senior leaders to drive anti-harassment efforts, working closely with staff and networks to identify risk areas; 
• Foster a “speak-up” culture and commit to timely, effective investigations and discipline when needed; 
• Review past harassment cases to evaluate current practices; 
• Create evidence hubs for managers to log incidents, then review trends for actionable insights; 
• Conduct regular staff “climate” surveys to pinpoint risk areas and improvements; 
• Communicate anti-harassment policies with clients and contractors through key personnel and written statements; 
• Establish confidential complaint processes to address issues thoroughly and prevent recurrence.

A sign of more to come?

Further changes are to come, with the recently published Employment Rights Bill enhancing the level of obligation to a requirement to take “all reasonable steps” (rather than just “reasonable steps”) to prevent sexual harassment, and indication by the new Labour government that it may 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 against harassment will be best placed to deal with any new obligations, as well as mitigating the new risk areas arising from any upcoming legislation.