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A new proactive duty on employers to prevent workplace sexual harassment will come into force in October 2024. This will be accompanied by updated guidance from the EHRC.

Duty to prevent

Sexual harassment at work is already unlawful. Employers can avoid liability if they can show they took all reasonable steps to prevent any harassment occurring. Most employers will already do this but there’s no legal obligation to do so. This will change from 26 October 2024 when, by virtue of the Worker Protection (Amendment of Equality Act 2010) Act 2023, employers will come under a mandatory duty to prevent sexual harassment - achieved by inserting a new s. 40A into the Equality Act 2010.

The new duty is to take reasonable steps to prevent sexual harassment of employees in the course of their employment. This applies to sexual harassment as defined in the Equality Act 2010, i.e. unwanted conduct of a sexual nature. The new duty only applies to sexual harassment. It does not apply to harassment based on other protected characteristics such as race, age, sexual orientation or belief. It also does not apply to harassment which is related to sex but is not conduct of a sexual nature.

The new duty extends to sexual harassment occurring ‘in the course of employment’. This covers sexual harassment occurring within the workplace, but it also covers harassment occurring at work-related events such as conferences or leaving drinks. The duty therefore requires employers to anticipate the situations when workers might be exposed to sexual harassment and take action in advance to prevent it from happening.

The original drafting of the Bill stipulated that an employer would have to take ‘all’ reasonable steps. However during the Bill’s passage through the House of Lords the word ‘all’ was dropped, arguably a lower threshold. The new Labour government has promised to strengthen the duty by reinstating the requirement for all reasonable steps to be taken. This however would need an amendment to the Act, and it is not yet known when this change will be made.

25% uplift

The 2023 Act also gives tribunals the power to increase compensation by up to 25% where an employer is found to have breached this new duty (which will sit alongside employees’ existing protections from sexual harassment in the Equality Act 2010).

The new legislation does not give employees a freestanding right to bring a s. 40A claim. Only the EHRC can do this. However, where an employee succeeds on a traditional sexual harassment claim, the tribunal will need to consider whether the new obligation has been satisfied. If it is so satisfied, it will have the discretion to order the employer to pay a compensation uplift of no more than 25%, reflective of the extent to which the employer has failed to comply with its duty. Although this is only triggered if there has been sexual harassment, the uplift itself will apply to all of the compensation that has been awarded for any type of harassment.

Third-party harassment

Also dropped during the Act’s Parliamentary passage was the re-introduction of an employer’s liability for the harassment of employees by third parties. This would have reinstated employers’ potential liability for harassment where its employees are subject to harassment by a third party, even a third party over whom the employer does not have direct control. Therefore, the position regarding employers’ liability for third-party harassment remains unchanged (but see below for EHRC’s guidance). There is no specific legal protection, but workers who are sexually harassed by third parties may be able to bring other claims against their employer in certain circumstances.

Updated EHRC’s guidance

Updated technical guidance from the Equality and Human Rights Commission (currently in draft form) specifies that the new duty to prevent requires employers to take steps to prevent sexual harassment committed by third parties. It specifically states that ‘the preventative duty includes prevention of sexual harassment by third parties. Therefore, if an employer does not take reasonable steps to prevent sexual harassment of their workers by third parties, the preventative duty will be breached’.

The amendments to EHRC’s guidance (as well as providing examples of the types of reasonable steps an employer can take to comply with the duty to prevent):

• make it clear that the preventative duty only applies to sexual harassment
• require employers to take reasonable steps to prevent sexual harassment by their own workers and by third parties such as clients and customers
• envisage that reasonable steps will vary depending on the size and resources of the employer but emphasise that no employer is exempt from the preventative duty
• highlight that the preventative duty is an anticipatory duty, i.e. that employers should undertake risk assessments to anticipate scenarios when their workers may be subject to sexual harassment and take action to prevent such harassment taking place and
• explain that an individual cannot bring a claim for breach of the preventative duty alone but also makes clear that the EHRC has the power to take enforcement action against employers who breach the preventative duty