Since 26 October 2024, employers have been under a proactive duty to prevent sexual harassment. As we mark the one-year anniversary of this duty, Croner-i Technical Writer, Stacie Cheadle, looks at what employers need to do to comply with this duty and why it is so important that employers regularly review and amend their approach to sexual harassment at work.
Background
Sexual harassment is a serious issue. In a recent survey of 2000 workers, WalkSafe, an online safety platform, found that:
- 27% of women and 16% of men have experienced harassment at work
- 14% reported experiencing sexual harassment
- 16% had considered leaving their jobs due to these experiences.
It can impact an individual’s physical and mental health, affecting them both in and outside of work. It can also have a detrimental impact on employee performance and commitment to their employer.
Duty to prevent sexual harassment at work
From 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 amended the Equality Act 2010 to include an anticipatory duty on employers to take proactive and reasonable steps to prevent sexual harassment of workers in the course of their employment.
This duty applies throughout the course of employment, which includes acts committed in the workplace as well as any other place where the worker is working, such as when the worker is offsite or attending a training course, conference or external meeting. It also includes work-related events, such as after work drinks.
An important thing to note is that the duty only applies to sexual harassment, not other types of harassment included in s.26 of the Equality Act 2010, ie harassment related to a protected characteristic (such as sex, age, disability, etc) or less favourable treatment for rejecting or submitting to unwanted conduct.
Failing to comply with the duty is not in itself grounds for an employment tribunal (ET) claim, however it can lead an employee to make a complaint to the Equality and Human Rights Commission (EHRC) which can take action against the employer. In addition, if an employer is found liable for sexual harassment at work by an ET, failure to comply with the duty can result in an uplift of up to 25% in the compensation for that claim.
Assessing the risks of sexual harassment
The EHRC’s technical guidance on sexual harassment and harassment at work states that “an employer is unlikely to be able to comply with the preventative duty unless they carry out a risk assessment.” Risk assessment is therefore an essential part of compliance with the duty, which requires employers to anticipate scenarios in which workers may be subject to sexual harassment in the course of employment and take reasonable steps to prevent it before it can arise. It also extends taking action to stop sexual harassment from happening again, should it occur.
As all things change, so will the risks of sexual harassment at work. Compliance with the proactive duty therefore requires regular re-assessment and adjustments to the measures to prevent sexual harassment to ensure they remain relevant to the workplace and effective.
Assessing the effectiveness of measures to prevent sexual harassment
By assessing the effectiveness of measures to prevent sexual harassment, employers can get a gauge on what is working in their workplace and what is not and adjust as necessary. This can be done by:
- reviewing the internal log to record complaints and outcomes to identify the frequency and nature of complaints and assess whether they reveal any patterns or anything that needs to be incorporated into employee training, eg where those alleged to have sexually harassed a colleague say they didn’t realise certain words or phrases could be construed as sexual harassment
- surveying staff on their experience of sexual harassment at work and their views on how safe they feel at work, their knowledge of the measures in place to prevent sexual harassment and whether they are familiar with how they can report sexual harassment in the workplace.
This information can be incorporated into risk assessments and used to modify or amend the measures that are in place to prevent sexual harassment. It can also be used to update staff training on sexual harassment. This in turn will strengthen the organisation’s compliance with the proactive duty.
Employment Rights Bill reform
From April 2026, there will be protection from suffering a detriment following a disclosure about sexual harassment as they become “protected disclosures”. Any dismissal for this reason would be automatically unfair.
In October 2026, employers will be required to take “all reasonable steps” to prevent sexual harassment at work as the proactive duty is extended beyond the current requirement to take “reasonable steps”. At the same time, employers will become liable for third-party harassment and employees will be able to directly bring a claim against their employer should it occur before an ET. Currently, whilst the EHRC as has said that third-party harassment is part of the proactive duty, employers are not specifically liable for third-party harassment under the Equality Act.
Conclusion
Preventing sexual harassment at work is an ongoing endeavour. Employers need to take steps to ensure the measures they have in place to do that are regularly reviewed and adjusted should they be found to no longer be effective. In doing this, employers can ensure they continue to comply with the proactive to duty.
