5. Sexual Harassment - The Preventative Duty

Effective from 26 October 2024 a new preventative duty for employers to prevent sexual harassment in the workplace came into effect, adding a new section to the Equality Act 2010 (section 40a). This introduced a positive duty for employers to prevent sexual harassment in the workplace by ensuring they take reasonable steps to prevent this. This duty applies to sexual harassment only.

However, please note that the reasonable steps defence is not altogether new. The Equality Act already sets out that an employer will have a defence against harassment if they have taken all reasonable steps to prevent harassment.

The main points to take from this duty is that employers must take reasonable steps to prevent sexual harassment in the workplace and that employers are required to take reasonable steps to prevent sexual harassment of workers by third parties. Currently there is no standalone claim that an employee can make against their employer for breaching this duty.

However, if an employee makes a claim to a tribunal for sexual harassment and is successful, the tribunal can increase the compensation by up to 25% (see enforcement below).

Steps to take

The EHRC have stated that employers are unlikely to be able to comply with the preventative duty unless they carry out a Sexual Harassment Risk Assessment. They have also provided the following 8-step guide to help employers comply with the duty:

1. Develop an effective anti-harassment policy (please see our template Sexual Harassment and Bullying and Harassment policies)
2. Engage your staff – this could be having regular one to ones, staff surveys, exit interviews, open door policies and regular notifications on policies and training
3. Assess and take steps to reduce risk (please see our template Sexual Harassment Risk Assessment)
4. Reporting – create as many ways as you can for staff to report any concerns they may have, see our template Confidential Reporting Form.
5. Training – regularly train your staff and provide additional training for managers
6. What to do when a complaint is made – act immediately and deal with any complaints in a timely manner (please see the Grievances section)
7. Dealing with harassment by third parties – harassment by a third party should be treated as seriously as harassment by an employee
8. Monitor and evaluate your actions – review your policies and training plus monitor any incidents, complaints and suggestions.

Please also see the Equal Opportunities section and the short training video ‘Equal Opportunities, Working with Colleagues’ that provides general guidance, including covering banter (please note that this video alone would not be sufficient to meet the preventative duty).

Enforcement

At tribunal there is no standalone claim an employee can make if their employer fails to comply with the preventative duty however, if any employee successfully makes and wins a sexual harassment claim, the tribunal can then add up to a 25% uplift on any compensation awarded to the employee.

In addition to this, the EHRC have been given powers to investigate complaints, of which anyone can report to them, of sexual harassment and issue notices and fines as they see fit. However, the EHRC are unlikely to address all complaints they receive as they have limited manpower, so it is expected that they will only address large employers or repeat offenders. Even when the EHRC step in, they will only issue fines if the employer fails to comply with the notice they issue, meaning it is unlikely that an employer will receive a fine without advance notice.

Compensation

If an employee is successful in a claim for sexual harassment, compensation will be based on loss of earnings, injury to feelings and in rare cases aggravated damages. There is no ‘cap’ on loss of earnings compensation. Loss of earnings could take into consideration loss of pension and promotion opportunities, so awards can be significant.

What to do next

The best way to prevent and to protect against a claim is to take all reasonable steps to prevent sexual harassment, the only way to protect against an uplift of up to 25% on compensation is to take reasonable steps to prevent harassment.

Use the Sexual Harassment Reasonable Steps Checklist as a guide and the tools and resource on YourHR.guide.