New duty imposed on employers to prevent sexual harassment in the workplace

Employment

Emma Cocker
April 2024

A new duty will be imposed on employers to prevent sexual harassment in the workplace from October 2024.

Currently workers are protected against sexual harassment carried out at work by their employer or its employees under the Equality Act 2010. Sexual harassment is defined as unwanted conduct of sexual nature which has the effect of violating the victim’s dignity, or creating an environment that is intimidating, hostile, degrading, humiliating or offensive.

Employers are also liable for sexual harassment carried out by their employees during the course of their employment, even if the employer was not aware of their actions.  However, employers may have a defence if they can show that they took “all reasonable steps” to prevent the harassing employee from acting unlawfully. However, the new rules will go further, placing employers under a duty to consider what steps can reasonably be taken to ensure that sexual harassment does not occur in the first place. This represents a shift from the current post-harassment liability to a proactive duty, and employers must therefore prioritise the prevention of sexual harassment in the workplace.

However, employees will not be able to bring standalone claims in the employment tribunals for a breach of the new duty. Instead, an uplift to compensation of up to 25% may be made to successful sexual harassment claims where an employer is found to have breached the new duty.

It is currently unclear what proactive “reasonable steps” employers are required to take, but the government has confirmed that further guidance will be published later this year. The Equality and Human Rights Commission will also issue a Code of Practice. We consider that  reasonable steps are likely to include implementing anti-harassment policies and procedures and training the workforce appropriately.

Although the new duty does not come into force until October 2024, employers should review the current suite of relevant policies to ensure they offer as much protection as possible. Contact us if you need assistance with such policies, or in dealing with complaints of sexual harassment.