Torque Law are an award-winning team of employment law solicitors based in York, and are a trusted partner of our Charities and Not-For-Profit team at BHP. In this blog, Associate Employment Law Solicitor Rosie Cowling explores preventing sexual harassment in the workplace.
Tackling the New Duty to Prevent Sexual Harassment: A Practical Guide for Employers
At Torque Law, we understand that employment law is always evolving, and keeping up-to-date can feel overwhelming. That’s why we focus on building long-term relationships with our clients, sharing knowledge and best practices to help them avoid costly mistakes and future-proof their business.
The Law
The definition of sexual harassment remains unchanged, according to s26(2) of the Equality Act 2010:
“Unwanted conduct of a sexual nature which has the purpose or effect of:
• Violating an individual’s dignity; or
• Creating an intimidating, hostile, degrading, humiliating, or offensive environment.”
However, from 26 October 2024, employers gained a new legal duty under s40A of the Equality Act 2010:
“An employer (A) must take reasonable steps to prevent sexual harassment of employees of A in the course of their employment.”
This means that employers are now required to take proactive steps to prevent sexual harassment, not just respond to it when it occurs.
What This Means in Practice
The term ‘reasonable steps’ is subjective, and its application will vary from business to business. There isn’t a one-size-fits-all approach, but the Equality and Human Rights Commission (EHRC) has provided helpful guidance on the factors to be considered in determining reasonableness. These include:
- Employer’s size and resources
- Sector in which the employer operates
- Nature of the working environment
- Risks present in the workplace
- Nature of any contact with third parties
- The time, cost and potential disruption of taking a particular step v. the benefit it could achieve
- Whether concerns have been raised with an employer about sexual harassment in the past
One thing is for sure – regardless of the size or resources of your organisation, every employer is now expected to take action continuously to prevent harassment – no employer is exempt!
How to Comply with the Duty
Considering the new law, guidance and case law, here are the steps that we would recommend all employers can put in place:
Policies
- As a minimum, you should have a robust sexual harassment policy which has been communicated to all staff.
- We would also recommend reviewing your supporting policies to ensure they are aligned, for example:
- Equal Opportunities
- Bullying and Harassment
- Social Media
- IT and Communications
- Disciplinary and Grievance
Training
- Another must is all-staff sexual harassment training, which is tailored to your workplace (including scenarios relevant to you).
- Preferably, there should be separate training for managers and employees.
- Those at the top set the tone, and they need to encourage a culture whereby harassment is unacceptable and reporting (including, by bystanders) is encouraged.
- All employees should be clear about what harassment is, what the organisation will do if it happens and what to do if they see or suffer it.
Culture
- Completing a risk assessment which considers all risk areas relevant to your organisation (for example, working at night, working alone, interaction with third parties etc) will help you identify any measures to put in place and further action required. We have a template risk assessment that we can share for any organisations seeking additional support. Any risk assessment should be routinely reviewed, and risks upgraded or downgraded depending on the circumstances and mitigating factors.
- It is also important for you to take the time to consider your culture (e.g. are there any (tangible or intangible) barriers to employees being able to ‘speak up’ about sensitive issues like this?), and review any outcomes of previous incidents so that you can identify any learnings, implement and measure action taken.
- Temperature test your organisation through an employee survey that includes questions around sexual harassment and how comfortable individuals feel in their working lives. This could include questions around whether they’ve been subject to any unwanted conduct of a sexual nature in the past, with freedom to respond anonymously if necessary
- Put metrics in place to monitor any complaints of sexual harassment, the outcome, and any action taken to evaluate the effectiveness of measures that have been put in place.
- Consider identifying a specific individual / group of individuals to receive additional specialist training as sexual harassment ‘angels’ or ‘champions’ – individuals to whom reports of sexual harassment can be made on a confidential basis.
The above isn’t an exhaustive list, but implementing these steps should help you, as employers, take positive action to prevent and deal effectively with sexual harassment in the workplace.
Enforcement and Risks of Breach
If you fail to comply with the new duty, there are significant reputational and financial risks:
- EHRC Enforcement
The EHRC will monitor employers’ compliance with the new duty and may take enforcement action against transgressors, including investigations, unlawful act notices and unlimited fines. Their recent action against McDonald’s demonstrates their willingness to pursue cases, and the reputational harm that can flow from their involvement. - Employment Tribunal
If an employer breaches its duty, the Employment Tribunal can increase compensation for sexual harassment claims by up to 25%. Since compensation in harassment claims is unlimited, the application of this uplift could result in substantial financial consequences for your organisation.
Conclusion
The new duty to prevent sexual harassment is a serious responsibility and one you should not shy away from. By updating your policies, providing training, and fostering a respectful culture, you can comply with the law and create a safer, more productive work environment. While it may seem like a significant investment upfront, it’s far more cost-effective than dealing with the financial and reputational fallout of a harassment claim.