Don’t get caught out: Why employers should plan ahead for the impending duty to “take reasonable steps” to prevent sexual harassment in the workplace

  • Market Insight 24 May 2024 24 May 2024
  • UK & Europe

  • Top workplace issues

Employers will already be aware of the need to take any complaint of sexual harassment very seriously. But here’s the head’s up: there’s a change coming up that will require employers to take a more proactive approach. On 26 October 2024, a new duty on employers to “take reasonable steps” to prevent sexual harassment of their employees will come into force.

Why do employers need to tackle sexual harassment in the workplace? 

Employers who have faced sexual harassment claims know the drill all too well. Dealing with the fallout isn’t just about managing the immediate issue; it’s about juggling the ripple effects that can shake up a business. You’ve got the social media storm to weather, with every tweet or post potentially fanning the flames. Then there’s the internal buzz—rumors and grumbles from the team that can sour the workplace vibe.

And it doesn’t stop there. You might find yourself fielding tricky questions from potential clients during tenders or reassuring investors who’ve got wind of the situation. Plus, there’s the long game to think about: how past incidents are perceived can impact on your hiring and retention strategies. 

Taking proactive steps to prevent these issues arising will not only help employers comply with the new duty coming into force in October but will actually help employers with their drive towards a more inclusive and positive workplace culture. Conversely, heightened expectations for a respectful workplace culture and a growing awareness among employees about discrimination rights, mean that employers who neglect to prepare for this new duty could face an increase in discrimination claims, with the potential for significant compensation payouts and damaging publicity.

Current legal position

Legally, sexual harassment is defined as unwanted conduct that is sexual in nature, where the purpose or effect of the conduct is to violate a person’s dignity or create a hostile environment. 

Unwanted conduct of a sexual nature encompasses a range of actions. Examples include sexual comments or jokes, displaying sexually graphic photos, spreading sexual rumours about a person, and asking intrusive questions about a person’s private or sex life.

Employers can be vicariously liable for sexual harassment committed by one of their employees against another, although it is a defence to show that they have taken all reasonable steps to prevent that employee from doing so. Reasonable steps in that context will include as a minimum providing adequate and appropriate training of staff and dealing effectively with and investigating complaints and taking appropriate disciplinary action against harassers. 

New proactive duty on employers

New legislation strengthens the protections available to employees from sexual harassment at work, by introducing a new duty on employers to “take reasonable steps” to prevent sexual harassment. This key change was implemented by the Worker Protection (Amendment of Equality Act 2010) Act 2023, and will come into force on 26 October 2024

It creates a new risk area for employers, especially as sexual harassment is sadly not a rare occurrence. According to the 2020 Sexual Harassment Survey conducted by the UK government, nearly three-quarters (72%) of the UK population experienced at least one form of sexual harassment in their lifetime, while 29% of those in employment had experienced sexual harassment in their workplace in the 12 months prior to the survey, equating to 20% of the UK population. 

In the face of this significant problem, the intention of the legislation is to shift the focus from redress to prevention and protection, which adds to the onus on employers to take proactive steps. 

Compensation uplift

Another important point to note is there will be a corresponding new compensation uplift of up to 25%, for breach of the new employer’s duty to prevent sexual harassment. Employees won’t be able to bring a claim for breach of the duty as it won’t be a standalone claim. However, where an employee’s claim for sexual harassment succeeds, the Employment Tribunal will then consider applying an uplift to any overall compensation awarded if it also considers there has been a breach of the new duty. 

If sexual harassment claims are successful, compensation pay outs to employees can be substantial, even without the impending threat of an uplift. For example, in Tahir v National Grid UK Ltd [2023] an Employment Tribunal awarded over £350,000 in compensation to an employee who had resigned after she suffered sexual harassment from her mentor, and victimisation from him and others after complaining about the harassment. 

Aside from the financial impact, successful claims can be damaging in other ways, occupying senior management time and causing reputational damage. It can also negatively affect recruitment and employee retention. 

EHRC investigations

Employers should also be aware of the powers available to the Equality and Human Rights Commission (EHRC) to investigate breaches of the Equality Act 2010. In 2023 the EHRC was so concerned about the handling of sexual harassment complaints made by staff at McDonald’s UK restaurants that it led to the restaurant chain committing legally, and very publicly, to an agreement setting out how it intended to address sexual harassment in the workplace going forward. An EHRC investigation is bad for business. As well as the negative publicity, it takes up management time and attention.

Get in touch for advice

As the new duty approaches, your preparations should not be limited to simply repeating previous staff training; the new duty to be proactive goes further than this and requires step change.

Updated EHRC technical guidance on Sexual harassment and harassment at work is awaited, which will reflect the new duty on employers. In the meantime, there are many useful steps you can take to get ahead of the curve.

Organisations should now undertake a comprehensive review of their current policies, training, and workplace culture. You will need new training materials suited for staff at all levels, and to implement various practical measures which will help you adopt a proactive stance against harassment, bullying and other negative workplace behaviours.

We can provide bespoke advice tailored to your organisation’s needs. Our approach is not just about meeting the new requirements; it’s about fostering a zero-tolerance environment that drives positive change. Our goal is to help you create effective resolution pathways, pinpoint risk areas, and ultimately cultivate a superior workplace culture.

Click here for more information on how we can help

End

Stay up to date with Clyde & Co

Sign up to receive email updates straight to your inbox!