Countdown on for New Duty to Prevent Sexual Harassment in the Workplace

August 6, 2024

Countdown on for New Duty to Prevent Sexual Harassment in the Workplace

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By Damian Phillips

An important change in the law will be brought into force on 26 October 2024, requiring employers to take reasonable steps to prevent sexual harassment at work. With many employers falling behind on this, our employment law experts share their advice on what employers should be doing to ensure they comply with the new duty.

What is sexual harassment?

Sexual harassment is any form of unwanted conduct of a sexual nature which has the purpose or effect of violating someone’s dignity, or subjecting them to a degrading, humiliating, intimidating or offensive environment at work. Because the definition focuses on the effect on the victim and not just the intent of the perpetrator, sexual conduct which isn’t intended to offend can still be covered. For this reason, in some cases, workplace ‘banter’ of a sexual nature has been seen as sexual harassment.

What does the new law do?

Employers will face a new duty to take ‘reasonable steps’ to prevent sexual harassment in the workplace. This will be a rare “positive” duty under the Equality Act, requiring employers to act proactively to prevent sexual harassment before it occurs.

What if an employer breaches this duty?

A breach of this duty by an employer will allow Employment Tribunals to uplift the compensation afforded to an employee by 25% where the duty is breached. This can lead to expensive compensation payments for employers where an employee successfully claims sexual harassment and other types of claims, such as constructive unfair dismissal.

The Equality and Human Rights Commission will also be enforcing the duty, and will have the power to undertake investigations into workplace practices and issue penalties for non-compliance.

Might there be further changes in this area?

As it stands, the new duty will be to take “reasonable steps” to prevent sexual harassment. The recent King’s Speech indicated that the new UK Government will strengthen the duty by making it “all” reasonable steps, which may be a much more onerous duty. Even more significantly, Labour indicated in its pre-election manifesto that it also wants to require employers to protect staff from third parties (such as customers or suppliers), not just their own employees. Keep an eye on our live updates page on the new Government’s employment law changes for any announcements in this area.

What should employers do now?

1. Update your HR policies to ensure your equal opportunities, anti-harassment and bullying policies are up to date. Lay out specific examples of behaviour which could amount to sexual harassment as well as how incidents will be dealt with.
2. Provide training to all employees to ensure they understand how these policies apply in practice. To comply with the new duty, this should take place on a regular basis, ideally with annual refresher training.
3. Educate all employees on how they can help ensure a workplace free from sexual harassment. Provide regular reminders of your expectations and ensure line managers are aware of their responsibilities to prevent sexual harassment. This will be especially important in advance of workplace social events that might involve alcohol, such as the Christmas party.
4. Follow a fair procedure when complaints are made and ensure a rigorous investigation is carried out. Be consistent and thorough in dealing with any of these complaints and consider carrying out a “lessons learned” review after any investigation.
5. Monitor and review the application of any sexual harassment policies. Consider carrying out risk assessment and workplace audits to review the success of any policies.
6. Maintain open and transparent communication in the workplace to ensure that employees feel comfortable to bring forward any concerns or recommendations.

Careful planning and preparation will be essential to ensure employers are ready to comply with this new, proactive duty.

If you require employment law advice on any of the above or would like to explore our training offering, contact Damian Phillips on 02920 829 126 or dphillips@darwingray.com  for a free initial chat to see how we can help you.