Stepping Up: The New Duty to Prevent Sexual Harassment in the Workplace

UK anti-discrimination law already mandates that if an employee discriminates or harasses someone during the course of their employment, the employer is typically held responsible unless they can prove they took ‘all reasonable steps’ to prevent such behaviour.

While this ‘all reasonable steps’ defence will continue, from 26 October 2024¹, there will be a new, proactive duty on employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment.

Compensation for a successful sexual harassment employment tribunal claim can be uplifted by up to 25% where an employer has breached this duty.

The aim is to ensure that employers actively implement reasonable measures to prevent sexual harassment from occurring among their employees.

On one view, whilst the new duty law suggests a change in emphasis, moving away from redress to prevention, the new duty doesn't change much for employers or employees.  It is restricted to harassment of a sexual nature only and, according to the Equality and Human.

Rights Commission (EHRC), employers are already "responsible for ensuring that workers do not face harassment in their workplace. They should take reasonable steps to protect their workers and will be liable for harassment committed by their workers if they fail to do so." 

However, some employers are concerned about the potential impact on reputation and the additional penalty for failing to take steps to prevent harassing behaviour.  Given the EHRC's enforcement powers, it may be that examples will be made of employers who do not do enough, which increases further the threat of reputational risk, and we already know that prevention of harassment is on the Labour Party's agenda should they be elected later this year.

In the run-up to 26 October 2024, we will be looking at some key practical issues and risk areas, to help inform what, if any, steps your business needs to take to be ready for the changes.

Stepping up – out with old policies and in with the new?

In this article in our series on the new duty to prevent sexual harassment, we look at whether employers should introduce a new policy specific to preventing sexual harassment, or whether it will be sufficient to review existing policies. 

Current guidance on harassment by the Equality and Human Rights Commission (EHRC) says that "All employers will be expected to have in place effective and well communicated policies and practices which aim to prevent harassment and victimisation"².  The EHRC is updating their Employment Code and guidance to address the requirements of the new duty to prevent sexual harassment, but the expectation on employers to have a clear policy is unlikely to be watered down.

But does this new duty mean a separate sexual harassment policy is required?  Or will an over-arching policy, dealing with all types of harassment, be sufficient?

The position will be different for each employer, and the composition and culture of the workforce, size of the employer and existing policy structure are all relevant in making a decision.  Employers with international reach may wish to consider a review to facilitate a joined-up approach across all relevant jurisdictions.  For example, some states in the US mandate sexual harassment training for all employees, while others only recommend it, and in any event the Equal Employment Opportunity Commission (EEOC) advises employers in the US to provide such training at regular intervals regardless of the State laws, alongside having appropriate policies in place, as part of preventing and remedying harassment.  Employers already complying with legal requirements and guidance in the US may have materials that they can use in or adapt for the UK and further afield to signify one corporate message of zero tolerance. 

Below are some additional factors to consider in response to the UK changes:

Introduce a new policy on sexual harassment?

In the wake of "Me Too", and in advance of the new duty coming into force, some employers have already introduced new policies dealing specifically with sexual harassment at work, in addition to having a more general policy on harassment and discrimination. 

The statutory focus is going to be different for sexual harassment compared to other types of harassment:

• there will be a positive duty on employers to take reasonable steps to prevent sexual harassment, or face a potential uplift in compensation that they must pay if an employee's claim of sexual harassment is successful;
• there is no positive duty for other types of harassment and, whilst there is the possibility of making out a "reasonable steps defence" in respect of any harassment discrimination claim, that defence requires "all reasonable steps" to have been taken, so the hurdle is higher where an employer is seeking to deny vicarious liability for harassment by its employees.

One could take the view that the duty to prevent harassment poses a bigger financial and reputational risk, that an "all reasonable steps defence" is rarely relied on, and that having a separate policy for sexual harassment may put the organisation in a better position overall.

Having a separate (anti) sexual harassment policy would ensure that relevant terminology is explained and examples are given relating specifically to sexual harassment and the different ways in which it can arise.  An additional policy may mean that the individual policies appear shorter and more digestible.  However, if producing a new policy, organisations should consider the extent to which other policies and contractual documentation may also need to be reviewed and updated. 

Tweak existing policies?

The EHRC already expects employers to have an anti-harassment policy and an appropriate procedure for reporting harassment, protecting victims of harassment and taking action if harassment occurs.

A policy will never be able cover all eventualities – it just provides a framework for what is and is not acceptable and how issues will be dealt with.  Some employers may therefore take the view that their existing harassment policy covers harassment in sufficient detail to include sexual harassment and satisfy the requirement that reasonable steps be taken.  It may be that there are bigger risk areas within the organisation, or that training can deal with any specific issues.  Perhaps some employers will be concerned that a separate sexual harassment policy may imply that different types of harassment do not have equal weight within their organisation. 

The duty to prevent sexual harassment is intended to be easier to satisfy than the test for avoiding liability for harassment and discrimination, which requires "all reasonable steps" to prevent harassment to have been taken.  Case law has shown that it is easy for employees to point to steps that an employer could have taken but did not take, but the position should be different in relation to the new duty.  For some employers, perhaps "reasonable steps" will not require a separate sexual harassment policy.  We anticipate that this is something that the EHRC may be considering in updating their guidance to address the new duty.

Regardless of whether a separate policy is introduced, employers should review their suite of policies, as referred to above, to ensure consistency and coverage. 

Monitoring and compliance

It is well established that having a policy of itself is not going to be sufficient to establish a reasonable steps defence and we anticipate that the Employment Tribunals will not consider having a policy of itself to be sufficient to comply with the duty to take "reasonable steps" either.   Any policy on harassment needs to be communicated to workers and effectively implemented, complied with, monitored and reviewed.  It will be important to stay up to date with changes in the law, particular if there is a change of government later this year – we know that liability for third party harassment as well as expansion of current rights and obligations to protect interns and volunteers could be on the Labour Party agenda.

We will discuss other potential "reasonable steps" and how to demonstrate compliance in a future article in this series.

For further information and advice about dealing with concerns of harassment, or the prevention of harassment, please contact Ranjit Dhindsa.

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1. The date that the Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force, implementing the duty to take steps to prevent sexual harassment in the workplace.

2. Sexual harassment and harassment at work (equalityhumanrights.com)