On October 26, 2024, a new legal duty requiring employers to take "reasonable steps" to prevent sexual harassment in the workplace will come into effect. To help employers comply with this new obligation, the Equality and Human Rights Commission (EHRC) has released updated technical guidance on sexual harassment and harassment at work.

This updated guidance follows a brief consultation period and includes a simple 8-step plan for employers to follow.

Reminder of Current Law

Sexual harassment, defined as unwanted conduct of a sexual nature that violates a person's dignity or creates a hostile or offensive environment, is prohibited under the Equality Act 2010. Employers are liable for harassment committed by their employees but can defend themselves by proving they took “all reasonable steps” to prevent it.

New Preventative Duty

The new law goes beyond current legislation by requiring employers to proactively take steps to prevent sexual harassment from occurring. This shift focuses on workplace culture transformation and prevention, rather than just enforcing rights after incidents occur.

Enforcement of the New Duty

Employers who fail to comply face financial and reputational risks. Employment tribunals may increase compensation for successful sexual harassment claims by up to 25% if an employer has not taken reasonable steps to prevent harassment. The EHRC also has the authority to investigate and take enforcement actions without the need for an actual harassment incident.

While the legislation initially sought to include liability for third-party harassment, this provision was removed. However, the EHRC guidance still advises employers to treat harassment by third parties as seriously as internal cases.

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Preparing for the New Duty

The EHRC emphasizes the importance of conducting risk assessments as a key factor in demonstrating compliance. The guidance outlines several relevant factors in determining what constitutes "reasonable steps" for employers, including the size and resources of the business, the diversity of the workforce, and the nature of the working environment.

The EHRC's 8-step plan includes:

1. Developing an effective policy,
2. Ensuring staff engagement,
3. Implementing a reporting system,
4. Providing effective training,
5. Establishing a clear complaint process,
6. Addressing third-party harassment, and
7. Monitoring and evaluating effectiveness.

Implications for Employers

Though the new legislation doesn't introduce a stand-alone claim, employers who fail to prepare for the duty may face increased harassment claims and higher compensation payouts. Employment tribunals are expected to rely on EHRC guidance to determine if an employer has met its obligations. Employers could also face investigations from the EHRC.

The government has proposed further changes, including requiring employers to take "all reasonable steps" to prevent harassment and making them liable for third-party harassment. These changes, part of the Employment Rights Bill 2024, are expected to take effect by mid/late 2026.

Employers are encouraged to begin preparing for the new duty now, including conducting risk assessments and implementing policies and training programs.