Get ready for the new proactive duty on employers to prevent sexual harassment in the workplace

The #MeToo movement went viral in the summer of 2017 as an awareness campaign around sexual abuse. It ignited conversations globally about sexual harassment both in and outside of the workplace.

In the wake of #MeToo, a cultural shift has developed in the way in which sexual harassment is viewed by society, and the government is channelling its lead on the issue by making changes to laws governing behaviour in the workplace.

The legal framework

In a few weeks, on 26 October 2024, the Worker Protection (Amendment of Equality Act) Act 2023 (the “Worker Protection Act”) comes into force. The Worker Protection Act requires employers to take “reasonable steps” to protect employees from sexual harassment in the course of employment.

The principle is not a new one: under current legislation, employers are vicariously liable for harassment committed by employees in the course of employment. However, employers are able to successfully defend such a claim if they are able to demonstrate that they took “all reasonable steps” to prevent such harassment.

What is the new duty?

The Worker Protection Act, which gained Royal Assent in October 2023, takes this further by introducing a proactive duty on employers to take preventative measures against unwanted conduct of a sexual nature.

According to the Equality and Human Rights Commission (“EHRC”), allegations could arise from a broad range of behaviour including:

• Suggestive looks
• Staring or leering
• Intrusive questions about a person’s private or sex life
• Discussing their own sex life
• Sexual gestures, comments or jokes.

The new duty does not bite, however, where other forms of harassment – for example, harassment because of sex or disability – are alleged.

What does it mean for employers?

A new code of practice is practice is promised in advance of the Worker Protection Act coming into force. In the meantime, the EHRC’s draft guidance and previous caselaw in this area gives some useful indication of what employers can expect:

• The duty is a preventative, anticipatory one. Employers should not wait until an incident of sexual harassment has taken place or is reported before they take any action
• Employers will need more than an off-the-shelf anti-harassment policy and an annual tick-box training exercise to be able to effectively deploy a defence. Real thought needs to be given to the nature of the risk and what can be done about it in their business
• The question of what, exactly, constitutes “reasonable steps” will depend on the facts of the case and the size and resources of the employer. It may include bespoke training for key managers and staff.

How will the new duty be enforced?

The EHRC will have the power to take enforcement action against employers who are non-compliant with the new duty, including the power to investigate and to issue an “unlawful act notice”.

However, the teeth of the Worker Protection Act are likely to be found in the Employment Tribunals: if an Employment Tribunal judge finds that a worker has been sexually harassed, it is open to them uplift to any award of compensation by up to 25%.

Given that an award for unlawful harassment is potentially uncapped – as it includes compensation for past and future loss of earning, injury to feelings and potentially personal injury – this could be a significant financial liability.

Key takeaways

In anticipation of the introduction of the Worker Protection Act, we recommend that employers:

• Undertake, and document having undertaken, some due diligence to understand the risks of sexual harassment occurring in their specific place of business, including where it could be committed by third parties, and to evaluate the measures currently in place to address it
• Cast a wide net to consider what further measures could be put in place before analysing which of those it would be reasonable to implement
• Ensure that any anti-harassment policies or statements of behaviour are bespoke to their business to specifically address any risk areas identified: for example, social media communications and work-related social events
• Embed transparent reporting lines into the business to ensure workers understand what to do if they are subjected to, witness, or are told about a incidents of sexual harassment
• Consider training to ensure that all workers have a clear understanding of what constitutes unwanted conduct of a sexual nature, and what behaviour is appropriate in a professional environment
• Implement ongoing monitoring to understand the effectiveness of any measures put in place and to evaluate compliance with the duty.