Employers need to be aware of the new duty to prevent sexual assault

Employers have a positive duty to take reasonable measures to prevent sexual harassment against their employees. This obligation will begin this month. Katherine Flower examines this new duty, and what employers can prepare for.

The new duty

The Worker Protection (Amendment of Equality Act 2023) Act was passed by the Parliament to encourage employers to take a more proactive approach to reducing workplace sexual harassment.

The Act imposes a positive obligation on employers, requiring them to take “reasonable measures” to prevent sexual harassment in the workplace.

The new duty will come into effect on 26 October 2024 regardless of whether you, as an employee, have received complaints of sexual harassment.

The new duty is anticipatory in nature. You must anticipate scenarios where your employees may face sexual harassment during their employment, and take preventative action to avoid harassment.

It is a continuous duty and not just a one-off. Effectively preventing sexual harassing will include regular assessment of potential risks, taking action where sexual harassment has occurred and evaluating whether additional steps need to be taken to comply with the duties. Below we explore the process of risk assessment in greater detail.

When considering the scope of duty, there are some important things to consider:

• The new duty applies to sexual harassing as defined by the Equality Act. It incorporates key concepts and definitions of the existing Equality Act 2010. The definition of sexual harassing is ‘unwanted sexual conduct’ that has the effect or purpose of ‘violating the dignity of [the worker] or creating an intimidating, hostile degrading, embarrassing or offensive environment’.
• It is also a duty to all workers. Although the law applies to “employees”, it includes most “workers” as well, because the term employee has a broad definition. Employers must take action to stop sexual harassment against employees and workers. We will refer to workers throughout this update.
• The Equality and Human Rights Commission’s Technical Guidance states that you must take action to prevent harassment from third parties. Third parties can include customers, employees, contractors and visitors.

What are the consequences for non-compliance with regulations?

Even though a worker can’t bring a claim on their own if the employer doesn’t take reasonable steps to stop sexual harassment, it still has important consequences.

If a worker wins a claim in an employment tribunal for sexual harassment, the compensation could be increased by as much as 25% if it is determined that the employer did not take reasonable steps to stop the sexual harassment. This increase can apply to any compensation that the worker receives under the Equality Act and not just the compensation for sexual harassment. This could lead to a significant increase.

The EHRC may also take action against employers who fail to take reasonable measures. These powers are applicable whether or not there has been an incident of sexual harassing.

The risk of a negative impact on your reputation is another factor to consider. In an economic environment that is tough and competitive, the perception of your company by others is crucial. Employers in regulated industries are at a higher risk of reputational damage. They must also take into consideration the additional factors that are based on their regulatory standards.

What is a reasonable step?

No list of reasonable actions is prescribed. The objective test will be based on the facts and circumstances in each case to determine whether reasonable steps were taken. The reasonableness of the steps taken will differ from one employer to another. Even if a step would not have prevented an act of sexual harassment, it may still be considered reasonable.

The technical guidance provides examples of what might be reasonable in various situations, and identifies factors that could be relevant to determining whether a particular step is reasonable. These factors include, but are not limited:

• The size and resources the employer
• The nature of the workplace
• The sector in which the employer operates
• The workplace is a place of high risk.
• The nature of your contact with third parties can include, for instance, the type of third party you have, the frequency and environment.
• The likely effects of a certain step, and whether a different step would be more effective
• The time, cost, and disruption that could be caused by a certain step are weighed against its potential benefit.
• If you have raised concerns with your employer about sexual harassment, it is reasonable to expect that they will take action to ensure this does not occur again.
• Compliance with all relevant regulatory standards, such as those set by the Financial Conduct Authority and General Medical Council.
• If the steps taken seem to be ineffective or effective, it may indicate that alternative and/or additional actions should be considered.

Compliance with the duty to stop sexual harassment

You are likely to be taking steps to prevent sexual harassment as an employer. You may, for example, have a policy against harassment, regularly scheduled equality and diversity training, and a reporting system through which you can raise concerns.

These steps are unlikely to suffice to prove compliance with the new obligation. It is evident that the EHRC expects all employers to take additional concrete steps to ensure compliance with the new duty. You should first conduct a formal risk assessment and then decide what additional measures you need to take.

EHRC technical guidance offers comprehensive advice to employers on how to determine reasonable steps. Eight-Step Guide also provides employers with a useful framework and highlights the main points they need to take to comply with this new duty.

Technical guidance reflects the fact that every employer will have a unique situation. It is important to consider your own organisation’s specific circumstances. While the technical guidance identifies actions that are applicable to all organisations, it is important to do this analysis at the organisational level.

1. Conduct (and maintain) an assessment of risk

The technical guidance makes it clear that a risk analysis is required to meet the new preventative duty. In fact, the guidance states that employers will be “unlikely” to meet the duty if they do not conduct a risk evaluation.

While you may not have assessed sexual harassment risk before, the frameworks you use to assess other risks (such as health and safety risk) should inform you on how to complete a sexual harassment risk assessment. You should also be aware that within your organization, there may be different risks from one site to another, from project to project, and from departmental to departmental.

You can use the results of your risk assessment to identify additional steps that you could take in addition to the ones you have already taken, which would reduce the likelihood of sexual harassment.

Technical guidance suggests that you assess your risks using the following method:

1. Take into account the risk of sexual harassment in the workplace
2. Take steps to prevent sexual harassment and reduce the risks.
3. What steps are reasonable?
4. Take reasonable steps.

It may be necessary to involve departments from across your company to identify risks. It is likely that your IT department will be required to assist in identifying risks that could arise from the misuse of IT systems, and to provide advice on how to prevent them. You’ll also need to work with managers within operational teams to identify risks workers might face due to their roles and/or working arrangements.

Engagement with your employees will be an important part of compliance. (See below). You may wish to discuss your plans with employee networks or recognised unions to reduce the risk. You can then take into account their suggestions and feedback, and canvass opinions on the proposed measures. This will encourage workers to buy-in to your culture and help you create a positive one.

The duty to comply is ongoing, as we have already stated. A one-off assessment of risk will not suffice. The risk assessment, once completed, should be a living document with a clearly documented owner and a monitoring and review process.

2. Plan your action

The technical guidance states that employers must develop a plan of action that outlines the steps they will take in order to reduce the risk, as well as how these steps will be monitored. The guidance encourages employers also to consider making these action plans available to employees and the public (by posting them on their website, for example).

The risk assessment you conduct will inform and help you determine what your action plan should contain. The risk assessment can be very detailed and not appropriate for an action plan.

It is important to explain in your action plan how you will monitor the effectiveness of reasonable actions. You’ll also need to be able show that monitoring is actually taking place. You should appoint someone to be responsible for the overall risk assessment and action plan.

3. Put in place the correct policies, procedures, and training

The technical guidance states that employers are expected to have policies “that are effective and well communicated… and aim to prevent victimisation and harassment”.

Employers have been debating whether or not they should have a separate policy on sexual harassment. The guidance confirms that, while organisations shouldn’t conflate harassments, employers have the option of having a policy that specifically addresses sexual harassment.

The technical guidance gives detailed and prescriptive advice on what should be covered in a good antiharassment policies. While your policy should be tailored to the specific circumstances of your organization, it is a good idea to compare your policy to the technical guidance in order to make sure you’ve covered all points. Your policy should include a procedure for handling complaints of sexual misconduct. This procedure must be effective and not overly restrictive.

Remember that employees should be able to express their opinions on your anti-harassment policies. You can seek feedback from your recognized trade union, employee-led networks, or other worker representatives.

You will need to ensure that, once your policy has been updated or completed, it is communicated effectively to all employees in various ways. It is important, for example, to include the policy in the diversity and inclusion training and refresher sessions.

4. Communication and engagement with employees

Consider the messages that are sent to employees and clients/suppliers about the organization’s position regarding sexual harassment.

The lower the risk exposure, the more consistent the messaging throughout the entire employment lifecycle is (including the recruitment phase), especially when reinforced by manager behaviours and regular staff training.

The technical guidance and eight-step guide make it clear that employers will need to interact with their employees to understand any potential problems and to determine if the steps taken are effective. Employers should, for example, avoid making assumptions regarding the extent of sexual harassment within their workplace.

If you do not have a formal complaint, it does not mean there is no sexual harassment. Clarify the situation by asking your employees about their experiences and views through exit interviews, employee forums, staff networks, or one-to-one meetings.

Make sure all employees are familiar with your anti-harassment policy, the consequences for violating it, and how to report any sexual harassment incidents.

Employment Rights Bill: More changes on the way

On 10 October, the government released amendments to the Employment Rights Bill which would change the obligations of employers to prevent sexual misconduct and the possible consequences of a breach.

The Bill will:

• The scope of the duty of prevention should be amended to require employers to take “all reasonable steps” to prevent sexual harassment against their employees (rather that merely “reasonable measures”) The wording would be aligned with the statutory defence available to employers who would otherwise be held liable for acts of discrimination committed by their workers. The EHRC will likely refer to case law on statutory defences when deciding if the duty has been met – the case law clearly states that “all reasonable steps” is a high standard.
• Give the Secretary of States powers to specify what steps will be considered’reasonable,’ such as risk assessments, and require employers to “have regard” to certain things when taking these steps;
• The definition of “protected disclosure” in the existing whistleblowing protections should be expanded to include disclosures that “sexual harassment has taken place, is taking place or is likely to take place”. The whistleblowing protections would cover a worker who made an allegation about sexual harassment, preventing him or her from suffering a detriment.
• Introduce a new third party harassment claim to the Equality Act. This will allow workers to file a claim if they are harassed in the course their employment by a third person and their employer has failed to take reasonable steps to stop the harassment. This new claim, as currently drafted by the Equality Act, would not only cover sexual harassment but would also include all other forms of harassment committed by third parties.

Originally, the first and last points (or an altered version of the last one) were intended to be included in the Worker Protection (Amendment of Equality Act 2023) but were removed as the Act made its way through the Parliament. Employers will want to monitor the Bill’s progress in the next few months, given the potential impact of the changes.

Employers are now subject to a number of obligations under the new duty. The new duty may be used by organisations with a history of sexual harassment to change their culture. They will invest time and resources in risk assessment, employee engagement, an action plan, and any subsequent steps. Other organisations, who believe they have a more positive workplace culture, may be at lower risk and can react accordingly.

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