New employer duty to prevent sexual harassment at work
Tougher laws on harassment are set to come into force in around October next year, with a new duty for employers to take “reasonable steps” to prevent staff from sexual harassment at work.
The new employer duty
Following the government’s commitment back in 2021 to strengthen protections for victims of harassment at work, the Worker Protection (Amendment of Equality Act 2010) Act 2023 received Royal Assent on 26 October 2023.
The Act introduces a new legal duty for employers to take reasonable steps to prevent sexual harassment of employees in the course of their employment. This aims to move the dial from a culture of redress to one of prevention, requiring employers to take a more proactive approach to tackling toxic environments.
What are "reasonable steps”?
Under existing legislation, employers are already liable for harassment where employees harass other employees unless they can show that they took "all reasonable steps" to prevent it (see s.109(4) of the Equality Act 2010). What constitutes “all reasonable steps” varies depending on the size and nature of the employer but will often take the form of implementing and regularly reviewing equal opportunities policies, making employees aware of such policies, training and dealing effectively with complaints.
However, the new duty departs from the concept of affixing liability if a claim arises which the employer has failed to take “all reasonable steps” to prevent, and creates liability for an employer who simply has not taken reasonable steps to prevent sexual harassment, whether or not any act of sexual harassment takes place.
What constitutes “reasonable steps” is not set out in the legislation, although it is clearly less onerous than proving the “all reasonable steps” defence.
In order to consider the test under the new legislation, tribunals will adopt a lower threshold when determining if there has been a breach and will not have to explore whether there were any other reasonable steps that an employer could have taken to prevent the sexual harassment.
In practice, however, the steps many employers will take to prevent sexual harassment in line with the new duty may in fact be substantially the same as if they were complying with a wider “all reasonable steps” requirement (i.e. maintaining policies, regular training, etc).
So that employers understand what “reasonable steps” they are expected to take to comply with their new duty, the Equality and Human Rights Commission (EHRC) will publish a statutory code of practice drawing on their existing non-statutory guidance. The original intention was for the code to be published in time for the Act’s implementation although an exact timeframe is currently unknown.
As the new duty will be enforceable by the EHRC, they will then have the power to take enforcement action against employers who are in breach of their duty and publish information on cases.
Where employers fall foul of the duty, the Act gives tribunals the power to order a compensation uplift of up to 25% of the amount awarded for the sexual harassment claim.
The beginning of a culture change?
The final version of the Act represents a somewhat less momentous change than the original Bill aspired to achieve (the imposition on employers of liability for third-party harassment of their employees and the wider duty on employers to take all reasonable steps were both abandoned - see our previous blog here), and is something of a shadow of the Bill that started its journey through Parliament. Removing the draft provisions on protection against third-party harassment was particularly significant given the government committed to introducing explicit protection from third-party harassment back in 2021 (see here).
However, tackling harassment by third parties at work is included in the Labour Party’s green paper. We could therefore see this issue revisited should Labour be elected to government next year.
Nonetheless, the introduction of a standalone duty for employers to take reasonable steps to prevent sexual harassment is welcome progress towards creating a working environment free from harassment. Turning a blind eye to sexual harassment in the workplace is no longer an option for employers, and employers will need to consider what steps they propose to take to prevent this sort of misconduct arising in their business.