This blog was co-authored with Huw Cooke, a senior associate in our employment team

From 26 October 2024, employers will be under a proactive duty to take reasonable steps to prevent sexual harassment of their workers. While there is no standalone claim under the Equality Act 2010 where an employer fails to take reasonable steps, there are still consequences. If a worker were to successfully bring a claim against the employer for sexual harassment, any compensation awarded could be uplifted by up to 25% if the Employment Tribunal found that the employer had failed to take reasonable steps. Equally, in failing to take reasonable steps, employers leave themselves open to enforcement action by the Equality and Human Rights Commission (EHRC).

In January 2020, the EHRC published technical guidance to help employers understand how the Equality Act 2010 prohibits harassment at work. This comprehensive guidance includes case studies and examples which you may find helpful in understanding your legal obligations. The EHRC is currently updating this guidance to take account of the new duty and on 9 July 2024 it issued a consultation on its proposed changes. The consultation period closes on 6 August 2024.

 The draft changes are only a few pages long, but there are a few things that jump out:

The preventative duty is an anticipatory duty

Employers should not wait until an incident of sexual harassment has taken place before they take any action. The new duty requires employers to anticipate scenarios when its workers may be subject to sexual harassment in the course of employment and should take pre-emptive action to prevent such harassment taking place. This is akin to the duty to protect the health and safety of employees and carrying out a risk assessment to ascertain where the risks lie in your workplace is going to be important.

What is reasonable? 

What ‘reasonable’ steps should be taken by employers to prevent sexual harassment? As you might expect, there is no simple checklist and the EHRC makes it clear in the additional draft guidance that what is reasonable for one employer may not be for another. In considering what is reasonable, the proposed new guidance sets out some general factors to take into account, such as, for example, the size of the employer, the nature of the workplace, and if workers come into contact with third parties, the nature of those third parties (see below for more on third parties).

The duty is not a one-off process

It is clear that ongoing review and monitoring of the steps being taken in an organisation will be critical. It is not going to be enough to take steps before October 2024 and then stand back. Regular assessment of possible risks, taking steps where incidents of sexual harassment have happened and considering whether additional steps are needed to comply with the duty will all form part of an effective approach to preventing sexual harassment.

Third party harassment

While the House of Lords removed a provision in the legislation which would have made employers expressly liable for the sexual harassment of their staff by third parties (which might include clients and customers, service users and members of the public), the proposed EHRC guidance is clear that employers who fail to take reasonable steps to prevent third party sexual harassment will be in breach of the new duty. Whilst a failure (in relation to preventing sexual harassment by third parties) won’t, on its own, give rise to a direct claim under the Equality Act, it could, nonetheless, result in the EHRC taking enforcement action against the employer. Importantly, in its Plan to Make Work Pay (the document which sets out the Labour government’s plans for employment law reform), Labour has said that it will “require employers to create and maintain workplaces and working conditions which are free from harassment, including by third parties” [our emphasis], so any reprieve from claims arising directly from third party harassment may be short-lived.

This raises many questions for businesses, especially where their staff interact on a regular basis with the general public –  be that customers in retail, patients in hospitals, users of public transport and so on. The case study, in the draft guidance, of a small theatre where staff will encounter the general public provides insight into how the EHRC might approach steps that should be taken to prevent third party harassment. These include consultation with staff, a zero tolerance policy, a clear reporting process, notices in the theatre and on tickets, and training. However this won’t be a one size fits all – employers will need to put in place preventative steps which are reasonable for their own particular circumstances and risks. 

What should employers be doing?

With summer holidays now in full swing, October is not far away, particularly given that compliance with this duty is not a quick-fix and may require collaboration across different areas of your organisation. In the first instance, we would suggest that you audit your existing arrangements (including policies, previous incidents and how they have arisen and been dealt with, training and reporting procedures for raising concerns), carry out a risk assessment and use those findings to identify what steps you need to take before autumn. Getting to grips with the EHRC’s guidance and the EHRC's seven step action plan - Preventing sexual harassment at work: a guide for employers (equalityhumanrights.com) - will also be helpful. 

Our briefing  How can employers prepare for new duty to take reasonable steps to prevent sexual harassment? (burges-salmon.com) contains further information.