New Duties for Employers in the Prevention of Sexual Harassment
24th October, 2024
On 26 October 2024 the new Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force. This introduces a new duty on employers to take reasonable steps to prevent their workers from being sexually harassed (the ‘preventative duty’) by other employees and third parties.
If a worker successfully brings a sexual harassment claim and the duty has not been met, the worker’s compensation could be increased by up to 25% as a result of non-compliance. The preventative duty and its application to third parties represent significant changes which mean that all employers will have to take steps to minimise the risk of sexual harassment.
What is the current law?
Section 26 of the Equality Act 2010 defines harassment as unwanted conduct which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for a person. The Act prohibits three types of harassment:
- Harassment on the grounds of a protected characteristic, including sex
- Unwanted conduct of a sexual nature which has the purpose or effect of harassment (sexual harassment)
- Less favourable treatment that is done because the person rejected or submitted to the unwanted conduct.
Sexual harassment can include sexual jokes, unwelcome hugging, propositions and intrusive questions about a person’s sex life. A person can be sexually harassed by someone of the same or opposite sex.
Under the current legislation employers can be vicariously liable for the actions of their employees or agents (but not third parties) which is done in the course of their employment but it can defend such claims if they have taken reasonable steps to prevent the harassing employee from acting unlawfully.
Why is the law changing?
In March 2018 the Equality and Human Rights Commission (EHRC) reviewed the current legislation and concluded that the current protection was insufficient to protect workers from sexual harassment and made recommendations, including a mandatory duty on employers to take reasonable steps to prevent sexual harassment. In July 2018 the Women and Equalities Select Committee also produced a report and agreed with the recommendation to include a mandatory duty. In May 2023, the Trades Union Congress reported that 39% of workplace sexual harassment had been committed by a third party.
What is changing?
The preventative duty only applies to sexual harassment. It does not cover harassment related to a protected characteristic (including sex), nor does it apply to less favourable treatment for rejecting or submitting to unwanted conduct.
The duty requires that employers should anticipate scenarios when its workers may be subjected to sexual harassment in the course of employment and take action to prevent such harassment taking place. This is a significant issue for the hospitality sector – where we are envisaging a high risk of potential third party harassment.
If sexual harassment has already taken place, an employer must take all reasonable steps to ensure that it does not happen again. Crucially, the new duty extends to prevent harassment from third parties.
On 10 October the Labour Government’s Employment Rights Bill 2024 (‘the Bill’) was published and this sets out further proposed amendments to the law on sexual harassment. The Bill suggests that the duty on employers to take “reasonable steps” be amended to “all reasonable steps”. Thereby, significantly increasing the extent of the duty placed on employers to prevent sexual harassment in the workplace.
The Bill introduces a duty on employers to take all reasonable steps to prevent harassment of an employee by third parties.
These proposals will now be consulted upon, and it is expected that reforms will not be implemented until 2026. For the time being therefore employers in the hospitality sector should focus on taking immediate steps to comply with the requirements of the Act and the imminent duty to take reasonable steps to prevent sexual harassment. These steps should be kept under regular review by employers whilst the consultation process on the Bill’s proposals to extend the duty progresses.
How we can help?
We can help prepare you for this change by:
- Assisting with ensuring that you have taken reasonable steps to prevent sexual harassment within your company.
- Reviewing your sexual harassment policies and procedures to make sure they are up to date and work in practice.
- Providing training tailored to your company and the hospitality sector on how to prevent sexual harassment in the workplace.
If you have any questions, please do not hesitate to contact our team of expert Employment Lawyers.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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