Despite the Equality Act 2010 deeming sexual harassment in the workplace unlawful, it remains a persistent problem. In the 2020 Sexual Harassment Survey by the Government Equalities Office, 29% of employees confirmed experiencing some form of sexual harassment in their workplace in the last 12 months. However, only 15% reported their experience formally.
These figures are just a glimpse of the true, critical issue of sexual harassment in the workplace and highlight the need for action.
Tessa Harris, Employment Law Director at Redmans Solicitors, explains the recently introduced Worker Protection Act. In this article, she covers the implications of not preventing sexual harassment reasonably. She also details some strategies for employers to help stay on the right side of the law.
The Worker Protection Act Introduces Preventive Duty
First introduced in 2023, the Worker Protection (Amendment of Equality Act 2010) Act 2023 brought with it a “sexual harassment preventative duty”. Whilst there were some criticisms and amendments to this, the Sexual Harassment Preventative Duty came into force on 26 October 2024. It ensured a positive obligation on employers to prevent sexual harassment by taking reasonable steps.
What Constitutes Sexual Harassment in the Workplace?
Sexual harassment is defined as any unwanted conduct of a sexual nature. This conduct would have to violate someone’s dignity or create an intimidating, degrading, or offensive environment for it to be considered sexual harassment.
This does not only mean physical misconduct but can also be verbal or non-verbal. Nonverbal misconduct could include sending inappropriate gestures, sharing obscene media, prolonged staring/leering, etc.
Previously, employers could rely on showing they have taken reasonable steps to prevent harassment as a defence. However, with the new duty imposed, employers must take reasonable steps to prevent any sexual harassment ‘in the course of employment’.
Keep in mind, this legislation does not cover harassment by third parties such as customers, suppliers, or anyone outside the organisation. However, the Equality and Human Rights Commission (EHRC) in their guidance state that the new duty applies to third party harassment as well. And while this is not legally binding, the guidance is likely to be considered during Tribunal claims.
Implications of breaching the duty
If there is a breach of duty, the EHRC has the authority to take action against the employer – even in the absence of a Tribunal claim. Any action taken would be in the public domain, and as such, financial and reputational damage could be significant.
In addition, failing in this preventative duty could result in a 25% uplift in sexual harassment compensation awards. For instance, in Ms H Sommer v Swiss Re Corporate Solutions Services Ltd, the claimant was awarded a £1.3m payout. Had her employer failed in their preventative duty, the final compensation could have been uplifted to £1.6m.
This financial impact could be substantially higher for claims with multiple claimants. Moreover, these are just the initial implications of breaching the duty. As case law develops and further amendments are made, the consequences could become more severe.
Key Responsibilities for the Employer
This preventative duty is an anticipatory duty, which means an employer should act reasonably in taking steps to anticipate the likely risk of workplace sexual harassment and then put in measures that will prevent it from happening.
If, in the unfortunate event, sexual harassment has taken place, the duty requires employers to take action to stop it from happening again. The first practical step that an employer should take is to carry out a risk assessment of the workplace.
In order to conduct a thorough risk assessment, the employer should consider all situations in the workplace where sexual harassment could occur. For example, workplaces with frequent customer interactions, social occasions that include drinking, or travel/off -site visits could be considered high risk workplaces.
As an employer, the risk assessment should analyse:
- What risks currently exist in the workplace?
- What steps can be taken to reduce pre-existing risks?
- What reasonable steps can be taken to prevent sexual harassment in the future?
- How can those steps be effectively implemented?
Reasonable Steps
Considering what is “reasonable” can be quite subjective, particularly as we have little information to understand what the EHRC are using as guidelines. However, it has been noted that various factors will be considered. For example:
- The size of the company
- The risks associated with the workplace
- If there are any previous complaints of sexual harassment
- Financial, human and technological resources available to implement preventative measures
- The steps taken to prevent harassment.
There are specific rules as to what steps should be taken. However, the Equality and Human Rights Commission has offered some practical steps to assist employers in considering what they can reasonably do in the circumstances.
Anti-Harassment Policy
One option is to develop an anti-harassment policy. It should explain the types of harassment there are, outline what third-party harassment is and explain the Sexual Harassment Preventative Duty.
Communication
After relevant policies have been circulated, engage the workforce in a discussion around it. It may be worth discussing with staff how they may feel affected by sexual harassment and require managers to have additional training on this accordingly. If managers are properly trained, reporting mechanisms can be put in place to allow a clear line of communication for those who may be affected. Ideally, there would be several routes to complain so employees can choose which route is most safe and supported.
Complaints Process
Any complaints that are raised, whether formal or informal, should be kept confidential and recorded for investigation purposes. This may help track any possible patterns to stop harassment from taking place.
Training
General training across the board is always a great way of enforcing policies and showing positive steps are being taken by an employer. If the company deals with third parties on a regular basis, it may be worth considering specific training for managers and staff on how to deal with third-party harassment.
As outlined above, many acts of sexual harassment go unreported. Hence, a way to encourage staff members to speak out is to send out regular surveys and seek feedback following events. Reviewing responses regularly will help identify areas of concern, new risks and trends.
Final Thoughts
Employers will need to carry out significant work to successfully and sufficiently prevent sexual harassment from occurring. In the EHRC 2018 report “Turning the Tables: Ending Sexual Harassment at Work”, it was stated that half of the surveyed employees did not report their experience of sexual harassment. Furthermore, in half of the reported cases, the employer took no action.
The Sexual Harassment Preventative Duty not only makes it easier to positively encourage employees to report sexual harassment, but it also pushes employers to take such complaints more seriously. However, legislation alone is not enough.
With employers being made more aware of the serious legal, financial, and reputational risk of neglecting their duty, they must ask themselves: Are they truly doing enough? The current climate requires greater commitment towards fostering safer workplaces. And while it may require operational effort, the long term benefits outweigh the short term inconvenience.
Run by employment law specialist, Chris Hadrill, Redmans Solicitors is a leading London-based law firm specialising exclusively in employment law. With over a decade of experience, they have advised more than 20,000 employees, senior executives, and high-profile individuals across the UK. Their team is committed to providing expert guidance on a wide range of employment issues, including unfair dismissal, discrimination claims, and settlement agreements.
