Legislative Background

Under the Equality Act 2010, employers are already obliged to prevent and address sexual harassment in the workplace. However, recent updates and proposed legislative changes aim to strengthen these obligations and from 26 October 2024, employers have a new mandatory duty to prevent sexual harassment.

Key Changes

1. Introduction of a Positive Duty to Prevent Sexual Harassment

One of the most significant changes is the introduction of a positive duty on employers to take proactive measures to prevent sexual harassment. Currently, employers are only required to react to complaints after the fact. Under this new duty, employers will be legally required to take all reasonable steps to prevent sexual harassment before it occurs.

What are “reasonable steps”?

The key points to take from the revised technical guidance are:

• What is reasonable will vary from employer to employer;

• Relevant factors are size of employer, sector, working environment and resources;

• There are no particular criteria or minimum standards the employer must meet; and

• The specific facts and circumstances of the situation will be highly relevant.

In practical terms, this means you must:

• Implement clear, accessible anti-harassment policies.

• Ensure all staff are trained on these policies, including the procedures for reporting and addressing harassment.

• Regularly review workplace practices and culture to identify and mitigate potential risks.

A failure to meet this duty could result in increased liability for sexual harassment claims.

1. Extended Time Limits for Harassment Claims

Another reform is the extension of the time limit for employees to bring sexual harassment claims from the current 3 months to 6 months. This extension allows employees more time to seek redress for incidents of harassment, making it even more important for employers to handle complaints promptly and effectively.

Potential Consequences

Failure to comply with these obligations could result in:

• Financial penalties and compensation orders in Employment Tribunal claims. When considering a sexual harassment complaint, the Employment Tribunal must consider if the preventative duty has been satisfied. If the duty has been breached, the Employment Tribunal can increase compensation by up to 25%, having regard to the extent of the breach.

• Damage to your company’s reputation.

• Potential vicarious liability for acts of harassment committed by employees, unless you can demonstrate you took all reasonable steps to prevent it.

Employer Responsibilities Going Forward

Given these changes, it is essential employers take proactive measures to ensure they are compliant. Some key steps to consider include:

• Policy Review and Update: Ensure that anti-harassment and grievance policies are up to date, reflect the potential new obligations, and clearly communicate what constitutes sexual harassment.

• Training: Provide regular training sessions to all employees on recognising and preventing sexual harassment.

• Create Safe Reporting Mechanisms: Ensure employees feel safe and supported when reporting incidents.

• Monitor Workplace Culture: Regularly assess workplace culture to identify any potential risks or areas where harassment may occur.

• Engage staff: Ensure that all complaints of sexual harassment are taken seriously and dealt with swiftly in line with legal and internal processes.

• Assess and reduce risk: Identify risk factors for sexual harassment specific to your workplace, for example telling sexually offensive jokes within the workplace.