By partner Catrina Smith and knowledge director Amanda Sanders at Norton Rose Fulbright
In recent years, the fight against sexual harassment in the workplace has gained significant traction, driven by movements like #MeToo and growing awareness of the pervasive nature of the issue. The public is increasingly calling for stronger protections and preventative measures to ensure they can work free from harassment. In response to this, the UK government is introducing a new legal duty on employers to prevent sexual harassment in the workplace.
This new duty underscores the responsibility employers have, to ensure the safety and dignity of their staff. It represents a shift from merely reacting to incidents of harassment to proactively preventing them, placing a greater onus on employers to create and maintain a harassment-free environment. Employers need to consider the implications of this duty and in particular take into account guidance from the Equality and Human Rights Commission (EHRC) to help ensure compliance.
The Current Legal Framework
Before looking at the new duty, it’s important to understand the existing legal context regarding sexual harassment in the workplace. Under the Equality Act 2010, sexual harassment is classified as unwanted conduct of a sexual nature that violates an individual’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment.
Under the Act, employers can be held liable for sexual harassment committed by their employees unless they can demonstrate that they took “all reasonable steps” to prevent it. In practice, this has led to many organisations introducing anti-harassment policies, conducting training, and establishing reporting procedures. However, critics argue that these measures often fall short, as they are reactive rather than preventative and may not adequately protect employees. Tribunals are also reluctant to accept that employers have satisfied the “all reasonable steps” defence.
The Introduction of the New Duty
The new duty to prevent sexual harassment aims to address these shortcomings by making the prevention of harassment a proactive legal obligation for employers.
The new duty will require employers to demonstrate that they have taken meaningful, proactive measures to prevent sexual harassment. This goes beyond merely having policies in place—it will likely require employers to ensure that those policies are enforced, that staff are properly trained on acceptable behaviour, and that a culture of respect is actively promoted within the organisation.
What are reasonable steps to take will depend on the circumstances of the employer including its size and resources.
Failure to fulfil this duty could result in legal action, with potential financial and reputational consequences for employers. Additionally, this duty will give employees more leverage to hold their employers accountable if they believe that insufficient preventative measures were in place.
The Role of the Equality and Human Rights Commission (EHRC)
The EHRC plays a pivotal role in setting standards for preventing harassment and providing guidance to help organisations meet their legal obligations.
The EHRC is in the process of updating its technical guidance (currently in draft form) which highlights several key areas for employers to consider:
Anticipating areas of risk: The guidance emphasises that employers should anticipate scenarios when its workers may be subject to sexual harassment in the course of employment.
Risk Assessments: Employers will be expected to conduct regular risk assessments to identify potential vulnerabilities to harassment within their organisation. These assessments should consider factors such as workplace power dynamics, the nature of the work being done, and any specific risks that may arise in certain industries or roles.
Contact with third parties: The preventative duty includes a duty to prevent sexual harassment by third parties. Employers should consider the risk of workers coming into contact with third parties in different situations, the risk of sexual harassment occurring in those situations, and take reasonable steps to prevent such harassment.
Reasonable Steps: Once areas of risk have been established, employers must take reasonable steps to prevent sexual harassment from occurring. What will be considered reasonable will vary depending on a number of factors including the organisations size, sector, resources and whether the employee will have contact with third parties. However, it will usually include:
Policies and Procedures – which should be regularly reviewed and updated. Employers should consider having a separate policy to deal with sexual harassment as opposed to other forms of harassment or distinguish between the two. Where possible, policies should be agreed with trade unions or other workplace representatives.
Comprehensive Training – The EHRC advises employers to provide regular training that is tailored to the specific needs of their workforce and to particular groups of employees.
Clear Reporting and Response Procedures: Organisations must have clear, well-publicised procedures for reporting harassment.
Leadership Accountability: The EHRC stresses that leadership must be visibly committed to preventing harassment and should lead by example. Employers should consider appointing designated harassment prevention champions or task forces to ensure that the issue remains a priority at all levels of the organisation.
The Implications for Employers
If employers fail to comply with the new duty to prevent sexual harassment, they face significant financial risks. If an employee’s sexual harassment claim is successful, the employer can face an uplift of 25% on any award (which is unlimited), if it is found that they failed in their duty to prevent the sexual harassment. The EHRC can also investigate employers and can issue enforcement notices or further sanctions which could further exacerbate financial losses, making compliance crucial to mitigate these liabilities.
For employers, the introduction of this new duty presents both challenges and opportunities. On the one hand, businesses will need to invest time and resources into implementing the necessary changes, which could involve updating policies, providing training, and conducting regular assessments. However, the new duty also offers an opportunity for organisations to strengthen their workplace culture, improve employee morale, and reduce turnover. By proactively addressing harassment, businesses can enhance their reputation as responsible employers and create a more productive, harmonious workplace.
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