The Worker Protection (Amendment of Equality Act 2010) Act 2023 (Act), which is due to come into force on 26 October 2024, will introduce a new mandatory duty on employers to prevent sexual harassment of their employees both from other employees and from third parties.

The Equality and Human Rights Commission (EHRC) has now closed its consultation on the Technical Guide: Sexual Harassment and Harassment at Work and the Technical Guide is due to be announced and published in September ahead of the Act coming into force (we will of course alert you when this is available!)

The Act will also give employment tribunals a new power to uplift an employee’s compensation by up to 25% where an employer is found to have breached the new duty.

Let’s have a look at “reasonable steps”

To comply with the preventative duty, employers must take reasonable steps to prevent sexual harassment of their workers in the course of employment.

What is “reasonable” will vary from employer to employer and will depend on factors such as (but not limited to) the employer’s size, the sector it operates in, the working environment and its resources. There are no particular criteria or minimum standards an employer must meet. Different employers may prevent sexual harassment in different ways, but no employer is exempt from the sexual harassment preventative duty.

Whether or not an employer has taken reasonable steps, is an objective test and will
depend on the facts and circumstances of each situation.

An employer should:

• Consider the risks of sexual harassment occurring in the course of employment
• Consider what steps it could take to reduce those risks and prevent sexual harassment of their workers
• Consider which of those steps it would be reasonable for it to take
• Implement those reasonable steps

In deciding whether a step is reasonable, the following factors should be considered:

• An employer will not be liable for harassment committed by a worker in the course of employment if they can show that they took all reasonable steps to prevent the harassment (the ‘reasonable steps’ defence) (s.109(4))
• An employer will have taken all reasonable steps if there are no further steps that they could reasonably have been expected to take
• In deciding whether a step is reasonable, an employer should consider its likely effect and whether an alternative step could be more effective
• A tribunal or court may find that it would have been reasonable for an employer to take a certain step, even if that step might not have prevented the act of harassment
• An employer is entitled to weigh, how effective a step might be against other factors such as the time, cost and potential disruption that may be caused by taking the step. A step that is expensive, time-consuming and troublesome to implement, will not be a reasonable step to take if it will achieve nothing. Conversely, if a step would be effective, then this may outweigh any other negative factors

Other factors that may also be relevant are:

• The size of the employer
• The nature of the workplace
• The risks present in that workplace
• The types of third parties, workers may have contact with
• The likelihood of workers coming into contact with such third parties

Third-party harassment

In addition to the prevention of worker-on-worker sexual harassment, the preventative duty includes a duty to prevent sexual harassment by third parties. There are many different types of third parties that could sexually harass a worker (such as customers, clients, service users, patients, friends and family of colleagues, delegates at a conference and members of the public).

Employers should consider the risk of workers coming into contact with third parties in different situations, the risk of sexual harassment occurring in those situations and take reasonable steps to prevent such harassment.

Workplace audits and risk assessments should be carried out, documented and should feed into your policy. Risk Assessment templates are available from your advisor. An audit will need to be tailored according to your organisation but should involve:

Sexual Harassment Audit

The aim is to shift your focus towards taking proactive measures to identify risks and prevent sexual harassment from happening in the first place. It requires management involvement in assessing where you are now and understanding what needs to change to ensure compliance with the new duty from 26 October.

Your audits should involve a review of your:

• Policies
• Procedures
• Training – ahead of the new duty, when onboarding new employees, and at least annually thereafter – consider training for all staff on sexual harassment but ensure it is tailored also to tackle particular challenges for different types of workers. Training needs to include: Definitions of harassment, expected standards of behaviour, and how to report sexual harassment. Give additional training to managers in dealing with complaints of sexual harassment and conducting investigations
• A programme to review and audit your sexual harassment safeguards and information gathering (regular intervals)
• A method by which you will track updates

Detail on how you will look to other data for indicators: exit interviews, formal and informal complaints, grievances to seek indicators of sexual harassment
How you will involve senior management through strategic level assessment of workplace culture. The Commission’s guidance is the need for employers to conduct a review of the culture within the business and how that needs to be led by senior management, this could be in the form of staff surveys useful for understanding the ‘reporting gap’ (meaning how many people have faced sexual harassment but not reported it, and why), and establishing what further steps staff think could reasonably be taken to prevent it.

Example of employer action

An employer is updating its anti-harassment policies and planning training for all staff. It is a large distribution centre with most staff working in a warehouse environment. It is not open to the public, but customers can order products and attend the warehouse to pick them up from a customer collection point.

The employer carries out a risk assessment to assess the risk of its workers being exposed to sexual harassment. It considers what steps it can take to minimise those risks and prevent sexual harassment from taking place and consults with employee representatives about the action it proposes to take. The employer implements a variety of measures including:

• Updates to its policies and procedures in relation to sexual harassment to clarify the law, expected behaviours and complaints mechanisms
• Training with managers and staff to raise awareness of rights related to sexual harassment and the employer’s policies
• Specific training for managers to support them in dealing with complaints
• A process for reviewing the effectiveness of the updated policies and training
• A timetable for refresher training for management and staff

Is it good enough?

The employer fails to consider the risk its workers could be sexually harassed by customers attending the premises to collect orders, despite an incident of such harassment occurring only six months ago.

The employer has failed to consider if there are any reasonable steps it can take to prevent the sexual harassment of workers by third parties. It has therefore failed to comply with the preventative duty.

Example of employer action

A theatre company is considering what steps it can take to prevent the sexual harassment of its workers. The company is very small and has limited financial resource. It considers there is a risk its workers could be sexually harassed by colleagues, self-employed consultants who sometimes work with the theatre company and audiences attending its productions. It also considers there is a risk its workers could be sexually harassed by third parties attending opening night parties and awards events. These events are infrequent and take place in various different locations on an ad hoc basis.

The theatre company considers what steps it can take to prevent the sexual harassment of its workers by third parties – self-employed consultants, audiences and members of the public at opening night parties and awards events. After consultation with staff, it adopts a zero-tolerance policy to third party sexual harassment, communicates that policy to its staff and encourages them to report any instances of third party harassment that may occur. It develops a protocol for how any reports of third-party sexual harassment will be dealt with.

Self-employed consultants are informed of the zero-tolerance policy by email when they contract to work with the theatre company.

Audiences are advised of the policy in an email when they book their tickets. Notices are displayed in both the public and private areas of the theatre where the company normally runs its productions.

The theatre company considers if there is anything further it can do to protect staff from sexual harassment when at awards ceremonies and launch events.

It considers engaging an external provider to deliver training to staff on keeping themselves safe in public situations and how to safely intervene if they see sexual harassment happening. However, it decided the cost of the training would use a disproportionate amount of its limited budget.

Is it good enough?

Given the company is small, has limited resources and such events are infrequent, it is likely to have taken reasonable steps to prevent sexual harassment of its workers and therefore complied with the preventative duty.