Employers’ new duty to prevent sexual harassment

The law that aims to protect employees from sexual harassment in the workplace will change later this year.

The Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force in October, placing employers under a duty to proactively prevent unlawful behaviour. It requires an employer to take ‘reasonable steps’ to prevent its employees being sexually harassed by colleagues, extending the existing obligations under the Equality Act. While employers are currently liable for harassment that happens in the course of an employee’s employment, it may be possible to escape legal liability if the employer can show it took all reasonable steps to prevent the harassment from happening.

The distinction between the current and the impending position may seem subtle. Both approaches require ‘reasonable steps’ (albeit it’s ‘all reasonable steps’ under the Equality Act), but the firm emphasis in the new law will be on prevention. There will be a positive duty to take reasonable steps to prevent the harassment, as opposed to an ‘all reasonable steps’ defence being open to the employer after the event.

What does this mean for employers?

There will need to be a greater understanding of sexual harassment and the situations that may give rise to it. Sexual harassment isn’t always easy to predict or to spot; it’s unwanted conduct of a sexual nature which (whether intentionally or not) has the effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. That subjectivity can be problematic – what offends one person might not offend another, hence the common perpetrator response: ‘it was only banter’.

Employers should spend time between now and October ensuring their policies and procedures are sufficiently clear, comprehensive and robust. It would be wise to consider training staff throughout the organisation so that they understand (as a minimum) what sexual harassment is, how behaviour affects others, and the steps that should be taken by managers to prevent or deal with harassment at work.

While the new law doesn’t give employees a new type of claim to bring, it could entitle them to a 25% uplift in compensation if the tribunal finds the employer breached its duty. The Equality and Human Rights Commission may also get involved in an enforcement capacity. Preparatory steps now could help avoid those repercussions, as well as engender a respectful, fair and happy workplace.

For advice about the new duty, or help in reviewing and amending policies, contact us on 01264 353411 or email on info@bsandi.co.uk.