It’s February – the evenings are getting lighter; spring is around the corner, and you’ve just booked your summer vacation. October 26th 2024 seems like a lifetime ago, doesn’t it?

But October 26th 2024 was a significant day for employers and employees alike. It was the day the Worker Protection (Amendment of Equality Act 2010) Act 2023 came into force and, along with it, a new legal duty for employers to proactively take reasonable steps to prevent sexual harassment.

The new duty reads:

An employer (A) must take reasonable steps to prevent sexual harassment of employees of A in the course of their employment.

If an employer loses a sexual harassment Tribunal claim, the Judge can uplift any compensation award by up to 25% should they find that the employer failed to take reasonable steps to prevent sexual harassment. Considering compensation in harassment claims is unlimited, the financial implications can be significant.

Additionally, the Equality Human Rights Commission can take enforcement action against employers who fail to take reasonable preventative steps.

For employers, regularly updating your anti-harassment policy, carrying out assessments to identify potential risks of sexual harassment, and requiring employees to undertake regular and relevant sexual harassment training are all key steps you can take to comply with the new duty.

What is sexual harassment?

Sexual harassment is a specific form of harassment defined in the Equality Act 2010 as “unwanted conduct of a sexual nature which has the purpose or effect of either violating dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment”.

Conduct “of a sexual nature” can include explicit jokes, inappropriate topics of conversation, intrusive questions about someone’s private life, unwelcome touching, hugging or kissing, or displaying indecent images. Sexual harassment can occur even where the individual reporting it isn’t the subject of the behaviour. For example, an employee overhears their colleagues making lewd jokes or sees something of a sexual nature on a colleague’s laptop whilst passing by their desk.

The Equality Act 2010 also expressly prohibits less favourable treatment of individuals who report sexual harassment or reject sexual advances.

But it’s just banter…

Some employees may try to justify their actions towards others by saying their conduct was “banter” or “they didn’t mean it that way”.

Whilst the employee’s conduct may not have been intended to offend or intimidate, when it comes to any kind of harassment, the focus is on the effect of the perpetrator’s conduct, not the intention behind it.

The incident happened on a work night out - we can’t be liable, can we?

Employers should be mindful that sexual harassment isn’t limited to the workplace. Work drinks, social activities with colleagues, business trips, work-related WhatsApp or Teams chats, and company events are also settings where sexual harassment can occur.

Liability for harassment that took place on a work-related WhatsApp group was referenced in a recent case where a former employee was awarded almost £25,000 after racist and dehumanising Islamophobic language was used by her colleagues on a group chat that she discovered.

Third-party harassment

The duty to prevent sexual harassment extends to harassment by third parties, such as your customers or clients, or even couriers who deliver to your premises. Just because something happens outside the workplace or the sexual harassment is at the hands of a third party, it doesn’t absolve the employer of liability.

So, what should we be doing? The Equality Human Rights Commission has provided an eight-step guide to preventing sexual harassment. The full list can be found on their website, but below is a snapshot of the key recommendations.

1. Review your anti-harassment policies.

• Has your anti-harassment policy been updated in line with the new duty?

• Do employees know how to report sexual harassment?

• Do employees understand the consequences of breaching your anti-harassment policy?

• Is the anti-harassment policy easily accessible to employees?

2. Carry out a Risk Assessment.

• Employers should conduct a thorough risk assessment to identify potential risks of sexual harassment in and out of the workplace.

• Any risks identified should be noted, and careful consideration given to what reasonable steps could be taken by the employer to reduce or remove that risk.

• Any remedial action should be implemented swiftly.

3. Training for managers and employees

• All employees should receive training on spotting sexual harassment and what acceptable behaviour is in and out of the workplace.

• Employees should also know what to do if they experience or witness sexual harassment, including who to report it to.

• Managers and senior staff lead from the top, so they should be trained to handle reports of sexual harassment appropriately.

4. Continually monitor

Policies, risk assessments and training only work effectively if they are followed by all those who work in the business. 

Taking swift action against employees who breach policies and behave inappropriately is crucial.