On 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 (the Act) comes into force. The Act introduces a new preventative duty on employers to take reasonable steps to prevent sexual harassment of their workers and employees. The Equality and Human Rights Commission (the EHRC) has also published updated technical guidance (the guidance) for employers on how they can comply with the new law (available here).

In this insight, we look at what the Act and the EHRC’s guidance means for employers.

The Preventative Duty: what is it and how is it enforced?

Employers must now proactively take steps to prevent harassment occurring in the workplace.

The guidance clarifies that the preventative duty does not only relate to harassment by its own staff members, but extends to sexual harassment by third parties.

However, a standalone claim cannot be brought for third-party harassment in the employment tribunal. Instead, should an employer fail to comply with this duty, they may be the subject of:

• enforcement action by the EHRC (which does not depend on an incident of sexual harassment having taken place); and/or,
• an order by an employment tribunal to uplift the compensation awarded against them in a successful sexual harassment claim under the Equality Act 2010 by up to 25% (and the guidance clarifies that the power to uplift applies to all discrimination compensation awarded to a claimant, not just the compensation awarded for sexual harassment).

This new preventative duty is different from the existing provisions relating to the protection of workers from harassment under the
Equality Act 2010, where there is a ‘statutory defence’ available to employers if they can demonstrate that they have taken all reasonable steps to prevent the harassment complained of. The new provisions create a positive duty to put in place measures, as opposed to those measures offering a defence to a claim for employers that have done so.

The EHRC’s guidance for employers: points to note

The guidance includes examples to illustrate what might amount to reasonable steps for an employer to take, depending on the risk factors identified by employers in particular industries. The section on assessing risks relating to harassment is particularly detailed, which reflects its importance; it makes clear that an employer is unlikely to be able to comply with the preventative duty unless it carries out a risk assessment.

Some of the actions recommended to employers in the guidance (and the accompanying eight-step guide) include:

• developing and widely communicating a robust anti-harassment policy, which includes third party sexual harassment
• undertaking regular risk assessments to identify where sexual harassment may occur and the steps that will be taken to prevent it
• being proactively aware of what is happening in the workplace and any warning signs, by engaging with staff through 1-2-1s, surveys and exit interviews
• monitoring and evaluating the effectiveness of actions.

What to take away

The new duty on employers to prevent sexual harassment in the workplace has put sexual safety at work in the spotlight. It is evident that sexual safety is important not only from a business / service perspective, but also to protect workers and employees, something which will be crucial in improving staff retention.

The eight practical steps identified by the EHRC are not an exhaustive list and employers should consider their own workforce needs carefully. However, implementing the steps identified in the guidance as a minimum will help employers to create a safe workplace, to empower staff, managers, leaders and HR teams to report and respond effectively to concerns raised and achieve a positive culture change.

Employers should note that this may not be the last word on the matter. The Government has already indicated a plan to strengthen this legal duty to include ‘all reasonable steps’ and also to automatically give those who report sexual harassment at work whistleblower status, providing additional protection from detriment and dismissal.

How Capsticks can help

Capsticks has significant experience of supporting employers to prevent discrimination and harassment in employment, from implementing policies promoting sexual safety in the workplace, drafting equality and diversity policies, assisting with the review of current practice and implementing change, to delivering training to employees at all levels. We also deal with any complaints or specific issues that may arise in individual cases, by conducting investigations, supporting decision makers and HR, and defending any employment tribunal claims.

Recordings of our recent events on this topic – webinar on Sexual Safety in the Workplace and a Mock Employment Tribunal - are available to watch ‘on demand’here and here.

For further information on how we might assist your organisation, please contact Nicola Green, Jonathan Lewis and Alistair Kernohan.