26 October 2024 – Are you ready? Preventative duty to prevent sexual harassment in the workplace

From 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 introduces a new positive duty for employers to take proactive reasonable steps to prevent sexual harassment of their employees in the course of their employment. This is called the preventative duty.  The preventative duty does not create a new freestanding cause of action, but the EHRC will be able to enforce the new duty where there is evidence of organisations failing to take reasonable steps to prevent sexual harassment.  It is important to note that enforcement by the EHRC does not depend on an incident of sexual harassment having taken place.

The Act also gives the Employment Tribunal the power to impose a 25% uplift on sexual harassment compensation where the new duty has been breached.  Subject to evolving case law, we consider that this uplift may be applied even if a claim of sexual harassment wasn't the main operative claim but was involved in the background in some way if an employer is found to have breached the preventative duty in any event.

We are working with a number of clients to help them get ready for the preventative duty, which is proactive in nature, rather than reactive only (as per the existing law).  We wanted to share with you some of the actions we are working on with clients to ensure that they are in a good position when the preventative duty comes into force on 26 October 2024.

What do you need to do?

Under the preventative duty, you'll need to be able to show that you have taken proactive reasonable steps to prevent sexual harassment in your workplace. The preventative duty includes worker-on-worker harassment and harassment by third parties such as customers, clients or patients.  The latest EHRC guidance on the new duty makes it clear that, as part of complying with the new duty, employers should consider contact with third parties and consider whether sexual harassment may take place and take reasonable steps to prevent this.

The EHRC has recently published updated technical guidance (published on 26 September 2024) on what will amount to reasonable steps including an 8-step guide for employers on sexual harassment in the work place.  It is now vital for you to consider the steps you need to take to ensure that you have measures in place when the preventative duty comes into force. 

What amounts to reasonable steps will depend on the size and resources as well as the industry/sector of each employer, but we have set out below some recommendations to consider having in place in readiness for the preventative duty:

1. Clear and robust anti-harassment policy, which includes third party sexual harassment to complement your wider diversity and inclusion-type policies; 
2. Ensuring those policies are regularly reviewed and well understood by your employees;
3. Regular and comprehensive tailored training for staff which covers sexual harassment, the standards of behaviour expected in the workplace and how to raise a complaint;
4. Additional training for managers on dealing with sexual harassment complaints effectively and lawfully;
5. Identify potential third parties and take reasonable steps to prevent sexual harassment from third parties. Consulting directly with trade unions could help you to identify potential risks and issues;
6. Having a zero-tolerance workplace culture in relation to sexual harassment (if this would work for your organisation).  We would only recommend having this type of express policy if it was openly supported and endorsed by senior management, and there needs to be some consensus about what zero-tolerance actually means (as dismissal every time won't always be fair);
7. Encouraging the reporting of sexual harassment via a clear process, including proactively setting out the provision of appropriate support to encourage a culture of "speaking up" and monitoring the same so that effective measures can be put in place to minimise risks going forward.  A separate clear process could also include a "check-in" meeting with a complainant and/or witnesses to ensure that they feel supported following the making of any complaint/investigation (which also minimises the risk of victimisation);
8. Regular staff surveys to continually monitor and evolve reasonable steps to support staff. You can use surveys to encourage staff to report issues as well as to gauge employees' confidence and understanding of reporting processes. For employers who want to take a comprehensive approach, a full workplace culture audit can also help you to better understand your people and culture;
9. Carrying out separate risk assessments for sexual harassment to ensure your risk identification process is situational and practical for different roles;
10. Broadening out the scope of existing workplace champions to incorporate this sensitive subject which in turn fosters an increasingly supportive culture;
11. Internal campaign initiatives;
12. Taking effective measures to help to minimise the risk of sexual harassment by third parties. This could include reviewing your existing contractual arrangements such as commercial contracts, supplier codes, and your use of non-disclosure agreements and clauses as well as appropriate intervention by management when third parties misbehave;
13. Responding to requests and suggestions from employees to continue to foster an increasingly supportive culture.

How can we help you?

We are already working with clients on many of the above suggested measures, including:

• Providing a separate policy dealing with sexual harassment which can often be provided on a fixed fee basis depending on what is required;
• Strategic transformation discussions to help organisations develop in this area;
• Tailoring and delivering innovative training to all staff as well as more detailed training for front-line managers which is delivered in a way that brings about real change to not only reduce risk, but to also increase engagement and motivation of all.  We have a suite of different options to train all on what sexual harassment in the workplace looks like, what to do if one experiences or witnesses sexual harassment, and, how to handle any complaints of harassment.  Where third-party harassment is a potential, we can also train your people on how to address these issues. 

Needless to say, we would be delighted to work with you too!

If you would be interested in purchasing a separate policy dealing with sexual harassment for a fixed fee, training on the new duty and sexual harassment or in discussing any of the suggested recommendations above, please contact Joanne Boyle, Mollie Gascoigne or your usual contact in the team.