Preventing sexual harassment in the workplace: the new Preventative Duty on employers under the Worker Protection (Amendment of Equality Act 2010) Act 2023

The Worker Protection (Amendment of Equality Act 2010) Act 2023, which took effect on 26 October 2024, introduced a new legal obligation for employers to take reasonable steps to protect their employees from sexual harassment in the workplace.

The Equalities and Human Rights Commission (EHRC) recently issued guidance outlining what may constitute ‘reasonable steps’ under this legislation.

In this article, we highlight the key changes under the act and the EHRC recommendations for employers on how to prevent and manage sexual harassment in the workplace. We also advise on the next steps that employers should take to ensure compliance with the new legislation.

Key changes under the Worker Protection (Amendment of Equality Act 2010) Act 2023

The new act broadens employers' responsibilities by requiring them to proactively anticipate and prevent potential instances of sexual harassment. Employers are expected to take steps even in the absence of specific incidents of harassment. This preventative duty extends beyond just worker-on-worker harassment, covering incidents involving third parties such as customers, clients, or suppliers. Employers must assess and mitigate risks, even when harassment comes from individuals not directly employed by the organisation.

If an employer fails to meet this preventative duty, the financial consequences can be significant. In cases where an Employment Tribunal finds that a worker has been sexually harassed and the employer has not taken sufficient preventive measures, compensation may be increased by up to 25%.

EHRC recommendations for employers

The EHRC’s guidance provides useful recommendations for employers on how to prevent and manage sexual harassment in the workplace, such as to:

• Develop and widely communicate a robust anti-harassment policy, which includes third party sexual harassment.
• Undertake regular risk assessments to identify where sexual harassment may occur and takes steps to prevent it, with a new focus areas on harassment by third party, particularly in high risk workplaces such as where staff might be alone with clients.
• Be proactively aware of what is happening in the workplace and the warning signs by engaging in regular 1-2-1s and exit interviews, and ensuring workers know how to report sexual harassment, are aware of the policies in place, and the consequences of breaching the policies.
• Consider using a reporting system that allows workers to raise an issue either anonymously or in name.
• Provide up to date training on what sexual harassment looks like, what to do if you experience or witness it, and, for managers, how to handle complaints of harassment.
• Act immediately to resolve harassment complaints and protect the complainant as necessary.
• Monitor the effectiveness of actions taken.

Enforcement of the Preventative Duty

Workers can also report concerns about non-compliance directly to the EHRC, although the commission may advise them to address the issue with their employer or trade union first.

What are the next steps for employers?

With the 26 October 2024 deadline now behind us, if employers are yet to do so, it’s vital to review and update policies to ensure compliance with the new legislation. Failing to take adequate preventative measures can lead to costly consequences, not only in financial terms but also in workplace morale and reputational damage.

At Ashfords, we can offer a fixed-fee service to assist employers in drafting or updating their anti-harassment policies to align with the new legal requirements. We are here to help you safeguard your workforce and comply with this important legislative change. For further information, please contact our employment team.