As part of Labour’s ‘Plan to Make Work Pay’, from 26 October 2024 new legislation will come into force which puts a positive legal duty on employers to prevent sexual harassment of their workers. Employers must take ‘reasonable steps’ to prevent sexual harassment of workers during their employment; it is therefore a ‘preventative duty’.

The aim of the legislation is to stop sexual harassment in the workplace before it starts. There will be an obligation on employers to implement measures such as having policies and procedures, providing training, and assessing foreseeable risks to prevent sexual harassment.

This obligation will extend to all employers, and it is important that employers seek advice now to identify risks in their workplaces, update their policies and procedures and implement training for their workforce.

A failure to comply with this duty has serious consequences for employers.

What is sexual harassment?

Sexual harassment is any ‘unwanted conduct of a sexual nature which has the purpose or effect of violating a worker’s dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for that worker’.

Employers must be careful to recognise that sexual harassment could be committed by a fellow worker, an agency worker or a third party.  For example, an agency worker would be any contractor that is required to enter the workplace, and a third party could be anyone that the worker has contact with, a member of the public, customer, client or patient.

The employer is under a preventive duty to reduce the risk of any worker encountering sexual harassment during the course of their employment.

No employer is exempt from this preventative duty

No employer is exempt from this obligation. The duty is to take reasonable steps to implement this preventative duty and what is reasonable will be different for each employer. Whether an employer has acted reasonably will be dependent upon each circumstance.

Employers will need to assess their workers’ environments and consider the risks of sexual harassment occurring in the course of employment, along with the steps they can take to prevent or reduce those risks and how those steps can be reasonably implemented. These steps could include providing training for workers, adopting new policies and procedures and putting up signs for zero tolerance in places where there are third parties present.

In assessing what steps are reasonable, the size and the nature of the workplace will need to be considered. The employer should also consider any current risks that are present in the workplace (including any places in which a worker may be undertaking their duties), and the types of third parties that their workers have contact with, and how those third parties could pose a risk to their workers. In considering these factors, employers will then need to implement suitable policies and procedures to prevent sexual harassment from occurring.

Consequences for failure to implement this preventative duty

A failure to implement policies and training for employees to prevent harassment could result in serious consequences for employers.

If an employer does not comply with the preventative duty, the Equality and Human Rights Commission have the power to take enforcement action against the employer. Their powers give them a right to undertake investigations, issue legal notices, enter into binding agreements with employers and they can also ask the court for injunctions and restraining orders. It is important to note that there does not need to be an act of sexual harassment for the Equality and Human Rights Commission to exercise their powers.

The Worker Protection (Amendment of Equality Act 2010) Act 2023 provides that where an employment tribunal has found that sexual harassment has taken place, and where the tribunal has ordered the employer to pay compensation, then the tribunal must also consider whether and to what extent the employer has also contravened their duty to take reasonable steps to prevent harassment of employees. If the tribunal is satisfied that the employer has contravened their duty to prevent, it may order the employer to pay a ‘compensation uplift’ of up to 25% of the compensation awarded for the harassment itself.

It is highly recommended that all employers undertake risk assessments and consider the policies and procedures which need to be implemented to comply with the preventative duty.