From October, new legislation will require businesses to take ‘reasonable’ steps to protect their employees from sexual harassment at work.

Employers will have a duty to take ‘reasonable steps’ to prevent sexual harassment of their employees, under new legislation expected to come into force on 26 October.  Under the Worker Protection (Amendment of Equality Act 2010) Act 2023, if a tribunal finds an employer failed to take steps to protect workers, it will be able to order them to pay a 25 per cent uplift to any award of compensation for sexual harassment.

Sexual harassment is defined by the Equality and Human Rights Commission (EHRC) as “unwanted conduct of a sexual nature” that has the purpose or effect of “violating a worker’s dignity” or “creating an intimidating, hostile, degrading, humiliating or offensive environment for that worker”.

The EHRC published updated guidance on sexual harassment on 9 July in anticipation of the Act coming into force, which was open for consultation until 6 August. It advises employers that they will have an “anticipatory duty” to prevent sexual harassment, meaning they should not wait until an incident takes place before taking action. The guidance further highlights that the EHRC will have power to take “enforcement action” against employers that do not comply with the new duties.

The legislation itself does not outline what the ‘reasonable steps’ employers need to take should be, while the EHRC’s guidance says that “what is reasonable will vary from employer to employer” and will depend on factors such as the employers’ size, sector, working environment and resources.

What should employers do to prepare?

The anticipatory duty requires that employers should anticipate scenarios when its workers may be subject to sexual harassment in the course of employment and take action to prevent such harassment taking place. If sexual harassment has taken place, the preventative duty means an employer should take action to stop sexual harassment from happening again. It also requires employers to take reasonable steps to prevent sexual harassment of workers by third parties, such as clients and customers.

In preparation for the new legislation, you could conduct a risk assessment to identify and address potential risk areas within the business, including reviewing past incidents, assessing cultural problem areas, and evaluating the impact of third-party interactions. You should also ensure existing policies on sexual harassment are comprehensive and up to date, along with establishing clear and confidential reporting mechanisms for employees to enable them to report incidents of harassment.

You should consider whether you and managers need training in this area which could include guidance on looking out for changes in behaviour within employees, the encouragement of one-to-one discussions and the implications of ‘banter’ within the workplace.

We are always on hand to help with the above and will keep you further informed in October when the legislation comes into force.

As always if you have any questions regarding the above or if you’d like to discuss these or any other points further please give one of our employment law specialists a call or get in touch via our Contact Form.