Sexual Harassment: the new mandatory duty on UK employers to take reasonable steps to prevent sexual harassment and practical tips for compliance

On 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 (the Act) came into force, introducing a new mandatory duty under English law on employers to take reasonable steps to prevent the sexual harassment of their employees in the course of their employment.

This is a significant change, as it imposes a positive obligation on all UK employers, regardless of their size, to act.  Previously having taken ‘reasonable steps’ provided a reactive defence if sexual harassment proceedings were brought against employers on the basis of vicarious liability.

What are ‘reasonable steps’?

The concept of ‘reasonable steps’ is subject to an objective test, the application of which will vary from employer to employer. Different employers may prevent sexual harassment in different ways, but all employers must take action, and no employer is exempt from the duty.

Anti-harassment policy

As a minimum, employers are expected to have an anti-harassment policy in place which emphasises a zero-tolerance approach to sexual harassment. This policy should be communicated to all employees, self-employed contractors and, where relevant, to third party suppliers and customers. It should set out how employees can raise a complaint and how these will be dealt with and should emphasise that no employee raising a complaint in good faith will be dismissed or retaliated against.

Staff could be required to sign a statement confirming that they have read, understood and will comply with the anti-harassment policy. Training should also be provided and regularly refreshed and updated with practical scenarios and case studies.

The mere existence of a policy or training will not be sufficient to establish compliance with the mandatory preventative duty.

Risk assessment

Employers must also be pro-active by assessing the risk of sexual harassment occurring in their organisation and anticipating scenarios, even if no sexual harassment complaints or grievances have been raised before and they have not previously been the subject of an Employment Tribunal claim for sexual harassment. Once risks are identified, employers must take action and establish relevant control measures to prevent such harassment from taking place.

Following the risk assessment, employers should produce action plans setting out what preventative steps they will take to address any identified risks and how such action plans will be monitored. It is recommended that employers consider publishing such action plans to workers. Employers should review the risk assessments regularly and take mitigating action if they identify any new or additional risks.

What are the consequences of breach?

While the duty itself does not create a standalone claim, if an employee brings a successful Employment Tribunal claim for sexual harassment and the employer is found to have breached the new duty, tribunals now have the power to increase compensation awarded by up to 25%.

As compensation for sexual harassment is not subject to a statutory cap and is based on actual financial loss going forward, (as well as a potential additional award for injury to feelings), a 25% increase in compensation could be a substantial amount. 

The Act also gives the Equality and Human Rights Commission (EHRC) the power to enforce the new duty by conducting investigations or entering into binding agreements with organisations to address issues of discrimination or harassment. The EHRC has these enforcement powers without employees needing to bring a sexual harassment claim in the Employment Tribunal.

Notably, the new mandatory duty relates to sexual harassment only and not harassment on the grounds of any other protected characteristic such as sex, race, age, disability, sexual orientation, religion or belief or bullying generally.  Although there are no plans to expand the duty further at present, this is likely to be a change that we see in the future.

An employer’s failure to comply with the new mandatory duty could also constitute a breach of the implied duty of mutual trust and confidence, which is an integral part of every employment relationship. This could give rise to constructive unfair dismissal claims by employees with more than two years’ continuous employment.

In light of the #MeToo and #TimesUp movements and recent high profile cases of sexual harassment, employers are taking their obligations seriously both because of the adverse consequences on individual victims which damages recruitment and retention prospects, but also the legal and reputational risks for the employer.

Practical tips for complying with the pro-active duty to take reasonable steps to prevent sexual harassment

1. Ensure your training for managers covers how to spot the warning signs of sexual harassment, such as increased sickness absence, lack of participation in team meetings or reluctance to work with a particular individual; and how to deal with sexual harassment complaints.
2. Make counselling and mental health support available for those raising and those accused of sexual harassment, perhaps through an Employee Assistance Programme.
3. Require staff to sign a statement confirming that they have read, understood and will comply with the anti-harassment policy.
4. Refresh and update sexual harassment training regularly with practical scenarios and case studies.
5. Conduct regular 1-2-1s, run anonymous staff surveys and exit interviews, and have open door policies to help you understand where any potential issues lie and whether the preventative steps you are taking are working in practice.
6. Consider surveying staff anonymously and confidentially on their experiences of sexual harassment, including whether they have witnessed or been subjected to sexual harassment, whether they have or would in the future report it (and if not, why not) and what further steps they think you could take to prevent it from occurring.
7. Make sure that all workers are aware of:
   1. how they can report sexual harassment.
   2. your sexual harassment policy.
   3. Ensure that management know what to do if a staff member raises a complaint of harassment.
8. Ensure that management know what to do if a staff member raises a complaint of harassment.
9. Consider using a reporting system (such as an online or independent telephone-based service) that allows workers to raise an issue either anonymously or on a named basis.
10. Keep centralised, confidential records of all concerns raised, formal and informal, to allow you to identify and address trends.
11. Consider the likelihood of workers being sexually harassed by third party customers and suppliers as well as co-workers. Harassment by a third party should be treated just as seriously and this should be made clear to your staff.
12. Understand that the risk of sexual harassment occurring is higher where there are/is:
    1. power imbalances
    2. gender imbalances (for example, where most junior staff are female and most senior managers / leaders are male)
    3. a predominantly male workforce
    4. a workplace culture that permits crude / sexist ‘banter’, (line managers should take steps to actively clamp down on inappropriate banter which creates a hostile or intimidating environment)
    5. job insecurity, for example, use of agency staff or contractors
    6. lone working, night working, out of hours working and isolated working
    7. staff left alone with customers
    8. the presence of alcohol (ensure there are non-alcoholic options available at work-related events and staff are aware of safe travel options home in advance. Line managers should reasonably limit their alcohol consumption at customer and work-related social events, so that they can comply with their management responsibilities and immediately step in to prevent any sexual harassment from occurring or to swiftly stop it if it does occur.)
    9. workers being placed on secondment
    10. working from home (be aware that sexual harassment can occur virtually, as well as physically in person)
    11. attendance at events outside of the usual working environment, for example, training, conferences, or work-related social events, an expectation that workers will stay away from home overnight (particularly if alcohol is being consumed). For example, ensure that male line managers understand that they should not ask junior female colleagues to meet them in their room, rather than in the public reception area
    12. social media contact between workers
    13. workers have more than one protected characteristic, for example, disabled people, ethnic minorities and people from the LGBTQ+ community.
13. Once you have considered these higher risk areas, assess whether there are steps you can put in place to prevent the risk of sexual harassment from occurring in these specific situations:
    1. Review any previous complaints of harassment made (whether formally or informally) and look across different channels, such as grievances, disciplinary records and exit interview notes for potential mentions of sexual harassment. Consider whether there has been a failure to respond appropriately to previous reports of sexual harassment and if there are any trends in particular areas of the business or issues which need to be addressed.
    2. Hold lessons-learned sessions after any complaints of sexual harassment are resolved.
    3. Where employees work on a hybrid basis, as sexual harassment can occur virtually as well as physically, for example via messaging apps such as WhatsApp’, Teams etc, require employees to communicate only on platforms that are subject to your monitoring procedures.
    4. Take active steps to remove the stigma and shame which puts victims off reporting. Make it clear that unfortunately sexual harassment can happen to staff at all levels of seniority, all ages and across all genders and sexual orientations.
    5. Be aware that victims may only want to report sexual harassment to someone who is the same gender or sexual orientation as them.
    6. Track the progress of victims who report sexual harassment and witnesses in investigations for several years following the incident to ensure that they do not suffer victimisation or detrimental treatment.
    7. Consider whether it is appropriate to draw your anti-harassment policy to the attention of third party customers, clients and suppliers.
    8. Stress that reporting procedures are not just for victims of sexual harassment. Anyone who observes the inappropriate conduct of others is under a duty to report it and will be protected from victimisation. The number of reports you receive from bystanders is a good way of measuring the practical effectiveness of your reporting procedures. Try to encourage active rather than passive bystanders.
    9. Ensure that there is board-level ownership of the steps you are putting in place to prevent sexual harassment to embed a zero tolerance anti-harassment culture throughout all levels of the organisation from the top down.
    10. If a further incident of sexual harassment occurs after preventative steps have been taken, consider whether any additional and/or alternative action can and should be taken.

If you require assistance complying with the new proactive duty on employers to take reasonable steps to prevent sexual harassment, including with risk assessments, action plans, updating anti-harassment policies and training for line managers and staff, please contact the author.