From 26 October 2024, UK employers will be required to take reasonable steps to prevent sexual harassment in the workplace. This new duty compels employers to proactively implement preventive measures to protect workers during the course of their employment.

Key Points of the New Preventative Duty

The duty is preventive, meaning employers must anticipate potential scenarios where sexual harassment may occur and take action to mitigate these risks. It is essential that employers demonstrate the specific steps they have taken to comply with this duty.

Sexual harassment, as defined by the Equality Act 2010, refers to unwanted conduct of a sexual nature that violates an individual’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment. Notably, this new duty only covers sexual harassment and does not extend to harassment based on other protected characteristics under the Equality Act 2010.

What Does the New Preventative Duty Involve?

Employers are legally required to prevent sexual harassment in the workplace. Failure to comply with this duty could lead to legal consequences. The goal of this duty is to transform workplace cultures by requiring employers to proactively anticipate and address situations where sexual harassment might occur, implementing reasonable steps to prevent it.

The Equality and Human Rights Commission (EHRC) has published an 8-step guide to assist employers in fulfilling this obligation. This guide forms part of the EHRC's updated guidance on the new duty. As the Guidance states, it is

a positive and proactive duty designed to transform workplace cultures.

Employers are now held accountable not only for addressing harassment after it happens but for taking action to prevent it from occurring in the first place.

Who Is Affected?

Despite the emphasis on "employment," this duty applies to all workers, including temporary staff. Employers must ensure that reasonable preventive measures are in place not only for permanent employees but also for agency workers. This extends to staffing agencies, who may be liable for harassment carried out by an end-client against an agency worker on assignment. Agencies should, therefore, ensure that their clients have appropriate preventive measures in place.

Consequences Of Failing To Comply With New Duty?

If an employer fails to meet the new duty, they face several consequences including:

1. Compensation Uplift: If an employee wins a claim for sexual harassment and compensation is awarded, the Employment Tribunal must consider the extent to which the employer complied with the preventive duty. Breaching this duty can result in a compensation uplift of up to 25%, which could include compensation for loss of earnings, injury to feelings, and, in some cases, personal injury.

2. Enforcement action by the EHRC: The EHRC can take enforcement action against non-compliant employers, which may include investigations, issuing unlawful act notices, and entering into legally binding agreements to prevent future violations.

Additionally, non-compliance could lead to negative publicity, reputational damage, and a decline in employee morale.

What are “REASONABLE STEPS”?

The Guidance makes it clear that there is no prescribed minimum and what is reasonable will vary from employer to employer. Whether or not an employer has taken reasonable steps is an objective test and will depend on the facts and circumstances in each case.

In deciding whether a step is reasonable, relevant factors include the:

• Employer’s size and resources
• Sector-specific risks
• Working environment and risks present 
• Nature of third-party interactions and the environment in which workers operate
• Cost and potential disruption of implementing preventive steps vs. the benefit achieved

Practical Steps for Employers

To comply with the new duty, employers should:

• Educate workers about sexual harassment, referencing the Equality Act 2010 and providing examples of inappropriate conduct. 
• Conduct risk assessments to identify potential risks of harassment and determine what steps can be taken to mitigate them. 
• Implement a clear anti-harassment policy outlining expected behaviours and reporting mechanisms. Regularly train employees and managers on these policies.
• Provide training for managers and staff, ensuring it is comprehensive and, if possible, delivered in person for maximum engagement. Include online training with assessments to verify understanding.
• Schedule refresher training at least once a year.
• Establish clear reporting mechanisms for harassment complaints and provide adequate support for those who come forward. Ensure all complaints are thoroughly investigated.

Managing Temporary Workers

For businesses employing temporary workers, additional steps are necessary:

• Conduct due diligence on end-clients, requesting information about their harassment policies and preventive measures.
• Include contractual terms with clients outlining harassment policies and requiring compliance with these terms.

Risks of Non-Compliance

In addition to the legal and financial risks, failure to prevent sexual harassment could lead to reputational damage, loss of employee trust, and a decline in workplace morale. Implementing and enforcing effective preventive measures is therefore essential to safeguard both employees and the business.

Conclusion

Employers must take action now to comply with the new duty to prevent sexual harassment. By implementing proactive and reasonable preventive measures, businesses can protect their workforce and avoid the significant consequences of non-compliance.

Let us lead by example and build a tech industry that is safe for all. At Redline Executive, we are dedicated to building world-class leadership teams for technology and engineering companies. With four decades of experience, we provide impartial advice on recruitment and candidate assessment. Contact us at +44 (0)1582 450054 or email info@RedlineExecutive.com for more information.