NEW LEGISLATION: Employers have a positive duty to prevent sexual harassment from 26 October 2024

While there has been lots of headlines about the Employment Rights Bill, there are big changes already coming for the law on sexual harassment in the workplace. 

On 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 (legislation.gov.uk) will come into force, introducing a new positive duty for employers to take reasonable steps to prevent sexual harassment at work.

If employers fail to meet this duty, they risk the following:

1. In claims for sexual harassment, the employment tribunals will have the power to increase compensation by up to 25%.
2. Direct enforcement action from the Equality and Human Rights Commission (EHRC), through the issuing of unlawful act notices and, ultimately, fines against employers who breach the duty.

It's important to be aware that the new positive duty focuses solely on preventing sexual harassment (defined as “unwanted conduct of a sexual nature”), not sex-based harassment or harassment related to other characteristics (which is unlawful in any event).

The EHRC has issued updated guidance for employers on sexual harassment in the workplace. While this guidance is not legally binding, it offers valuable insight into what actions may be considered ‘reasonable steps’ to prevent sexual harassment: Employer 8-step guide: Preventing sexual harassment at work | EHRC (equalityhumanrights.com))

Key points from the draft guidance include:

• Employers should assess the specific risks of sexual harassment within their organisation.
• Risk assessment should cover not only potential harassment from colleagues but also third-party harassment (e.g., by clients or customers).
• After identifying risks, employers should consider which steps are necessary and reasonable to prevent sexual harassment.
• Actions taken must be proportionate to the employer’s size and resources.

The draft guidance puts a strong emphasis on the employer’s duty to protect workers from third-party harassment. The duty, as set out in the Act, is clear: “An employer (A) must take reasonable steps to prevent sexual harassment of employees of A in the course of their employment.” This harassment could be carried out by a colleague, but it could equally be carried out by a third party (for example, a customer or client).

While employers have a duty to prevent sexual harassment by third parties, there is currently no legal provision allowing employees to directly bring claims of harassment against their employer in cases where the harassment was carried out by a third party. Previous provisions addressing third-party harassment were repealed in 2013, and a more recent attempt to reinstate them did not succeed.

For now, the risk of a 25% compensation uplift remains limited to situations where harassment is carried out by colleagues, rather than third parties. However, employers still face the risk of enforcement action by the EHRC if they fail to take adequate steps to protect their employees from third-party harassment in the workplace.

It is possible that the third party harassment rules will be reconsidered by the Labour government, and proposals allowing employees to file standalone claims for third-party harassment could be reinstated. If such a change were to be made, the power to increase compensation by up to 25% for failing to meet the duty to prevent harassment would probably apply to those cases as well.

Employers should be proactive in conducting thorough risk assessments to identify potential areas where sexual harassment could occur in their workplace. Once identified, it is crucial to implement reasonable measures to reduce those risks. Employers are advised to keep these assessments and any preventive actions under regular review and well documented to ensure ongoing compliance.

If you need guidance on complying with the new regulations or assistance in conducting a risk assessment, contact our Employment Team today on 01635 896336 or hello@fentonelliott.co.uk.