Duty To Prevent Sexual Harassment

On 26 October 2024 the Worker Protection (Amendment of Equality Act 2010) Act 2023 (“the Act”) comes into force. The Act imposes a positive obligation on employers to take reasonable steps to prevent sexual harassment in the workplace.

What is sexual harassment?

Sexual harassment is defined in Section 26 of the Equality Act 2010.

A person (A) harasses another (B) if A engages in unwanted conduct of a sexual nature and the conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

It is important to note that the intention of B does not matter. If the conduct has the effect described above, even if it was not B’s purpose or intention, the conduct can amount to sexual harassment.

The new duty only covers sexual harassment and does not extend to other protected characteristics.

What will employers need to do?

The new duty means that employers must adopt a proactive approach to prevent sexual harassment.

An employer should:

• Make sure it has up to date policies relevant to the business and industry.

• Arrange training for its employees and ensure this is carried out regularly and adapted to the business.

• Make sure employees are aware of how to report sexual harassment. With allegations against Mohamed Al Fayed being reported recently, alleged victims are claiming that the conduct of Fayed was not reported because they did not know who to report it to. Having a clear structure in place about how to report harassment will mitigate this risk. Open reporting, as opposed to anonymous reporting, is more practical as it will allow an employer to investigate fully by speaking to the person who has made the report. However, with people being reluctant to report harassment, anonymous reporting could still be utilised as it is better than no reporting at all.

This is not an exhaustive list and we would encourage employers to seek advice that is tailored to their individual business.

What happens if an employer fails to comply with the duty?

An individual cannot bring a standalone claim for an employer failing to comply with the duty. However, if an employee brings another substantive claim in the Tribunal and, alongside this, asserts a failure to comply with the new duty, the Tribunal could increase any compensation awarded by up to 25%. In addition, the Equality and Human Rights Commission can intervene.

Advice

If you require legal advice on the content of this article, speak to a member of our employment team on 01689 887 887.