The new duty to prevent sexual harassment – six years in the making

But it’s been a long journey.  Over six years ago, the Women and Equalities Select Committee published its report on sexual harassment in the workplace.  Citing a failure to tackle sexual harassment effectively by employers and regulators, it called for better data collection on the frequency of sexual harassment in the workplace and how it is handled, the reform of NDA’s, the improvement of enforcement processes and a more defined role for regulators.  Importantly, it recommended a mandatory duty to take reasonable steps to protect workers from sexual harassment, the introduction of a statutory code of practice with a power to uplift compensation by 25% (if the code isn’t followed) and the reintroduction of third party harassment provisions (removed in 2013).

The Government responded in December 2018 with a 12-point action plan, including the development of a statutory code of practice, but no firm timescales for implementation.  It went on to confirm that it would consult on several issues including whether to introduce a mandatory duty to prevent harassment and how best to protect against harassment by third parties but, at that time, expressly rejected the idea of a compensation uplift for failure to follow any statutory code of practice.

This consultation was launched on 11 July 2019.  There was specific focus on how best to encourage employers to take the right steps to prevent sexual harassment occurring in the workplace.  Would it be best to rely on the existing law which makes employers liable for an act of sexual harassment provided they did not take all reasonable steps to prevent it?  Or should this protection be ‘reformulated’ to introduce a proactive duty to take all reasonable steps to prevent harassment taking place?  You could be forgiven for wondering what the difference is as the two options sound remarkably similar.  However, the proactive duty would mean that enforcement action could potentially be taken against an employer for failing to put in place the appropriate preventative measures in the absence of an incident of harassment actually taking place.  As a result, it could lessen the burden on individuals having to bring claims in order to hold an employer to account.  60% of those of who responded agreed that a proactive duty would be the best way to encourage the prioritisation of harassment prevention.

As a result, in July 2021, the Government, with a foreword by the Rt Hon Liz Truss MP, confirmed their intention to introduce such a duty ‘as soon as parliamentary time allows’.  It also committed to further discuss the role of the EHRC in enforcement and support that organisation in the development of a statutory code of practice.  There was also a commitment to introduce third party harassment protection, although in this case it was only ‘when’ (rather than ‘as soon as’) parliamentary time allowed.

These proposed reforms eventually found their way into a Private Members’ Bill with government support – the Worker Protection (Amendment of Equality Act 2010) Bill 2022-23.  However, the third-party harassment provisions were dropped following debate in the Lords and the intended proactive duty to prevent harassment, which would require employers to take ‘all reasonable steps’, was watered down to remove the word ‘all’.  However, the mooted 25% uplift in compensation for failure to comply with the duty remained.  The Bill received Royal Assent on 26 October 2023 and is now due to come into force on 26 October 2024.

Code of practice?

So, what about the statutory code of practice?  The EHRC have now confirmed that, rather than introduce a brand new code, it will amend its existing Sexual Harassment and Harassment at Work: Technical Guidance to reflect the provisions of the 2023 Act.  The EHRC provided more detail on their intentions in their 2024/5 Business Plan in which it stated:

“This year we will lead a campaign to prepare employers for the new duties created by the [2023 Act]… including by updating and consulting on our sexual harassment technical guidance. We will also consider where regulatory action needs to be taken to tackle breaches when the new regulations come into place.”

It also committed to evaluating its Preventing Sexual Harassment at Work Toolkit for the hospitality sector and considering how this could potentially be adapted to fit other sectors.

New guidance

On 9 July 2024, the EHRC set out the proposed new Chapter 3 of its existing Sexual Harassment and Harassment at Work: Technical Guidance which is intended to provide support on how to interpret what they refer to as ‘the new preventative duty’ in respect of sexual harassment and launched a consultation to ‘make sure that this new section of the guidance is clear and helpful’.

The new proposed guidance focusses on several key areas:

• There is an emphasis on the fact that the new duty is ‘anticipatory’ in nature.  In other words, it requires employers to anticipate situations where sexual harassment may occur and take steps to prevent them.  It also requires employers to appropriately deal with sexual harassment when it does take place.
• It sets out the possible consequences of failure to comply with the duty including an uplift in compensation of up to 25% (where an individual succeeds in a sexual harassment claim and the tribunal considers that the preventative duty has been breached) and EHRC enforcement action.  Such enforcement action can include investigating the employer, issuing an unlawful act notice, entering into a legally binding agreement to prevent future harassment and even injunctive relief.
• In terms of limitations on the new duty, it confirms that it will only apply to sexual harassment and that an individual will not be able to bring a stand-alone claim based on the failure to comply with the duty.  In other words, it must be linked to an existing sexual harassment claim.
• Interestingly, although the third-party harassment provisions have been removed from the 2023 Act, the guidance confirms that the preventative duty extends to the prevention of harassment by third parties.

Reasonable steps

In light of this, employers will rightly be asking themselves what kind of steps they should be considering in order to ensure that they have properly complied with the preventative duty.  Whilst the new proposed EHRC guidance is not particularly detailed, it does make it clear that one size will not fit all employers and what is reasonable may depend on factors such as the employer’s size, resources, the sector it operates in and the particular working environment.

However, all employers will be required to;

• consider the risks of sexual harassment occurring in the course of employment
• consider what steps it could take to reduce those risks and prevent sexual harassment of their workers
• consider which of those steps it would be reasonable for it to take
• implement those reasonable steps

The new section of the guidance refers back to previous examples of the steps it envisages might be taken.  These include;

• having in place effective policies and procedures dealing with harassment as a whole, but which differentiate between different kinds of harassment.  These should be developed in collaboration with trade unions or workplace representatives and interact appropriately with other workplace policies such as disciplinary, IT and computer use and dress code;
• developing a thorough campaign to ensure awareness of the policies and evaluation of their effectiveness (through, for example, analysis of claims and trends, staff surveys and lessons learned sessions);
• maximising the opportunities for issues regarding harassment to be raised and ensuring that proper training is provided to all employees regarding types of harassment, identifying what is and is not acceptable behaviour and how to identify and deal with harassment when it occurs;
• adopting a risk assessment approach.  Suggested risk factors include:
  • power imbalances
  • job insecurity
  • lone working
  • the presence of alcohol
  • customer-facing duties
  • particular events that raise tensions locally or nationally
  • lack of diversity in the workforce, and
  • workers being placed on secondment
• having in place both informal and formal processes to deal with harassment, including how to approach workers who raise an issue but ask for it not to be taken further, how to deal with confidentiality during an investigation, reporting on outcomes and data privacy issues.

In deciding whether a particular step is or isn’t reasonable, an employer can consider the effectiveness of that step against such factors as the time, cost and potential disruption which may be caused by taking that step.  Other factors that may also be relevant are the size of the employer, the nature of the workplace, the risks present in that workplace, the types of third parties workers may have contact with and the likelihood of workers coming into contact with such third parties.  However, the suggestion is that the more effective the step would be, the more likely it is to outweigh other factors.

What next?

Now that consultation on the proposed new guidance has closed, it will be interesting to see what, if any changes are made to it.  Will there be clarification around an employer’s obligations in respect of harassment by third parties?  Currently, the 2023 Act does not make employers liable for such harassment but the proposed guidance includes a duty on employers to take steps to prevent it.  In addition, how will the plans of the new Labour Government impact on sexual harassment protection?  We’ll update our content as soon as more information becomes available.

Pay careful attention to developments in this area over the next few months – it may have been a long time coming, but the changes to sexual harassment legislation and guidance are almost with us.