Morrison & Foerster LLP
11/13/2024 | News release | Archived content
The “Preventative Duty”: New Law Places Active Duty on Employers in the UK to Prevent Sexual Harassment in the Workplace
Employers in England, Scotland and Wales are now required to take reasonable steps to prevent sexual harassment of their employees in the course of their employment. New legislation, the Worker Protection (Amendment of Equality Act 2010) Act 2023, which came into effect on 26 October 2024, creates a new pro-active, preventative duty on employers and provides for enhanced compensation for employees if their employer is found by an employment tribunal to have breached this duty. Employers should now take steps to ensure that they can comply with this preventative duty.
In this client alert, we highlight…
3. What should employers do now?
The new law
Sexual Harassment is defined in the UK Equality Act 2010 as any "unwanted conduct of a sexual nature, which has the purpose or effect of violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them". Before the preventative duty came into force, an employer facing claims of sexual harassment could potentially rely on the "statutory defence" that it had taken "all reasonable steps" to prevent sexual harassment from taking place. Under the new law, however, employers are now under a positive duty to prevent sexual harassment from occurring in the first place; as the Equality and Human Rights Commission (EHRC) puts it in its Employer 8-step guide: Preventing sexual harassment at work, "This [new law] is called the preventative duty. If employers do not comply with it, they are breaking the law".
Enforcement
The preventative duty:
- Applies to sexual harassment by third parties such as customers, clients or suppliers, in addition to sexual harassment by colleagues;
- Gives the EHRC the power to take enforcement action directly against employers, including to investigate an employer, issue an "unlawful act" notice, and require employers to prevent unlawful acts in future through a binding agreement or a court injunction; and
- Gives the preventative duty added "teeth" by giving employment tribunals the power to award a "compensation uplift" in a successful discrimination claim of up to 25% of any amount awarded to an employee if an employer is found to have contravened its duty.
It is important to note that the duty applies to sexual harassment and not to other forms of harassment (e.g., on the grounds of disability, age, race, religion, or sexual orientation). That said, employers should, of course, be taking steps to eliminate all forms of harassment in the workplace, and so, as best practice, employers should consider the preventative duty - and the corresponding guidance - as applying to any harassment that might take place.
What should employers do now?
To help employers understand how to meet their obligations under the preventative duty, the EHRC has published an 8-step guide, which the EHRC suggests "should help [employers] take positive action to prevent and deal with sexual harassment at work". Acas has also recently updated its own guidance on sexual harassment in the workplace. We have summarised three key practical steps from Acas and the EHRC's guidance below.
1. Undertake a workplace audit and risk assessment - Understanding the workplace culture and environment is crucial to identifying factors that might increase the risk of sexual harassment and putting in place the necessary measures to prevent it. Employers should consider risks such as
(i) the power imbalances that exist in the workplace;
(ii) the nature and frequency of interactions with clients/customers/suppliers;
(iii) the presence of alcohol;
(iv) the existence and nature of crude or inappropriate 'banter' in the office; and
(v) any out of hours/lone working or workplace socials.
To understand the potential risks, employers could encourage staff to complete anonymous surveys and/or offer focus group discussions with an external facilitator. Once specific risks have been identified, this will guide employers towards the appropriate mitigating steps. Employers should remain proactive and look out for any "warning signs" that sexual harassment might be taking place (rather than simply waiting for complaints or concerns to be raised); regular audits are recommended.
2. Implement robust policies and procedures - Employers should ensure staff are aware of reporting mechanisms if they experience or witness sexual harassment. Equally, management must be aware of appropriate immediate action to take when receiving a report or complaint of sexual harassment. Companies should implement either a separate, standalone, sexual harassment policy or update the current equality and anti-harassment policy to clearly and expressly set out its policy and procedures in relation to sexual harassment. The policy should provide clear examples (which are not exhaustive) that illustrate sexual harassment in several scenarios, such as a work situation, work social events or on social media. Strategy documents setting out how the employer intends to tackle and prevent sexual harassment would also be sensible, to show employees that their employer is taking this new duty seriously and is committed to preventing sexual harassment in the workplace. Employers should regularly review and update their policies and procedures to properly address any risks or concerns that might be identified through ongoing audits.
3. Organise regular training - Employers should ensure that employees understand how to recognise harassment, what to do if they experience or witness it and how to handle complaints about harassment. Training should be tailored to the nature of the work and the target audience, taking into account any specific risks identified - preferably with separate training for employees in management roles. Specific training around third-party harassment should also be provided in industries where employees are more likely to work directly (and, in some cases, unsupervised) with third parties such as customers, clients or suppliers, and employers should provide specific training on how to address scenarios that could reasonably occur in their industry, such as verbal abuse in a call centre or physical abuse in a pub. Employers should keep training records and provide refresher training regularly.
4. What Next?
The preventative duty represents an important shift in employers' obligations to improve workplace culture by anticipating circumstances in which sexual harassment might happen and to take reasonable steps to prevent it. Employers should be taking action now to ensure they are able to satisfy their obligations by reviewing the available guidance and seeking advice on what changes to policies and procedures might be required.
The government's recently published Employment Rights Bill takes the preventative duty further, and will require employers to take "all reasonable steps" to prevent sexual harassment and third-party harassment in the workplace. Workers will continue to have the right to make a compensation claim for sexual harassment against their employer but, under the Bill, workers will also be able to bring a claim directly against their employer for failure to prevent third-party harassment (currently, only the EHRC has the power to enforce third-party harassment claims). Sexual harassment concerns will also automatically be considered a "protected disclosure" in the context of whistleblowing claims. Exactly how employers are expected to take "all reasonable steps" to prevent sexual harassment is unclear at present (the government will be consulting on this, and other aspects of the Bill, and so these changes are expected to come into force in 2026 at the earliest). It is clear, though, that putting processes in place to comply with the preventative duty will ensure that employers will be in a stronger position to meet their enhanced obligations under the Bill.
Angela Utubor, London Trainee Solicitor, contributed to the drafting of this alert.