UK: New duty to prevent sexual harassment in the workplace

 

King Charles referred to a dynamic change in the law to protect women and girls from sexual violence in his speech earlier this month (July 2024).

From 26 October 2024, employers must proactively take “reasonable steps” to prevent the sexual harassment of their staff at work.

The new duty under the Worker Protection (Amendment of Equality Act 2010) Act 2023 is a seismic change in UK discrimination law. It seeks to put strict obligations on employers to prevent sexual harassment from taking place by establishing standards of behaviour for individuals in the workplace and by imposing hefty financial awards against non-compliant companies.

There have been growing calls for a change in the law to better protect women as highlighted by #MeToo movement and recent reports and surveys including a BBC survey in 2017 which found 40% of women and 18% of men had suffered sexual harassment at work.

In the speech on 17 July 2024, King Charles stated that the new labour government had plans to “halve violence against women and girls.”

Aims of the new law

The key aims are:

To create cultural and societal change to tackle sexual violence particularly against women;
To create a strong legal framework to help lift the burden from complainants to establish clear standards and expectations for individuals and employers; and
To force employers to prioritise putting preventative measures to tackle sexual harassment in the workplace.

 

What is sexual harassment?

The Equality Act 2010 defines sexual harassment as:

“unwanted conduct of a sexual nature” which has the purpose or effect of violating dignity or “creating an intimidating, hostile, degrading, humiliating or offensive environment”.

Types of behaviour may include sexual jokes or comments, remarks about someone’s body or appearance, innuendo, display of pornographic material, “cat calling” or “wolf-whistling”, flashing, sexual advances, groping, sexual assault, or rape.

All types of sexual harassment are serious.

 

Understanding the duty

Section 40(A) of the Equality Act 2010 states that:

An employer (A) must take reasonable steps to prevent sexual harassment of employees of A in the course of their employment.

Employers are only required to prevent sexual harassment of workers “in the course of their employment”. However, the definition of “in the course of employment” is wide and may include business outings, events, parties, and work trips.

The duty requires employers to take reasonable steps to prevent sexual harassment against its workers by other workers. It does not require action to prevent acts committed by third parties, although failure to address a potential threat or risk by third parties may lead to a claim by an employee, and enforcement action may also be taken against the employer by the Equality and Human Rights Commission s.40A(3)).

The duty is “preventative” which means that employers should not wait for an incident to occur before taking action. Employers must take active, reasonable steps which requires anticipating potential incidents, reviewing policies and educating staff, identifying risk areas including review of past incidents and looking at investigative, reporting and recording processes as well as ensuring that perpetrators are dealt with robustly.

An employee cannot claim a breach of the duty on its own in the Employment Tribunal. A complaint must accompany a claim of unlawful harassment involving sexual harassment.

Where an employee succeeds in a claim and is awarded compensation, the Tribunal must consider if there has been a breach of the duty to take preventative action. The Tribunal can increase compensation payable by the employer by up to 25% (s.124A). This is known as an uplift.

 

Reasonable steps

What is “reasonable” will vary and will generally depend on factors such as (but not limited to) the employer’s size, the sector it operates in, past incidents or issues, risk of harassment, and its resources. There are no particular criteria or minimum standards an employer must meet.

 

What employers should consider:

Conduct risk assessments – this could include anonymous surveys and reviewing complaints and outcomes.
Use of settlement agreements where staff have raised concerns – both for complainants and alleged perpetrators.
Consult with employees – discuss plans of action and take feedback and suggestions.
Update policies and procedures – define sexual harassment and how to make a complaint and set the standard of behaviour in the workplace. Also explain the process and the support provided to complainants.
Provide training – educating staff about sexual harassment. It is essential for managers to understand their responsibilities under the sexual harassment policy, to ensure that complaints are always dealt with effectively.
Conduct regular reviews and training – as with any other policy or procedure, it should be reviewed annually to ensure that it is being complied with and any issues are addressed.
Ensure processes meet regulatory requirements which includes the FCA guidance on non-financial misconduct in the workplace.

 

How we can help

Our team at ebl miller rosenfalck is able to provide guidance on the process of implementing preventative measures which is tailored to each business, including advising on how to conduct a risk assessment, helping you interpret the results and training staff on how to effectively deal with complaints.

We have also prepared a Sexual Harassment Policy which we can tailor to your business.

To see our slides on the new change of the law, please click here.

The EHRC’s guidance on the duty is the subject of consultation and can be accessed here.

The material contained in this guide is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

 

For further information, please contact:

Helen Murphie, Partner

ebl miller rosenfalck, London

e: helen.murphie@ebl-mr.com

t: +44 (0)7384 525 173

 

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