New duty on employers to prevent sexual harassment

Reasonable steps?

There are concerns that the duty on employers has been diluted. Originally, the duty was for employers to take “all reasonable steps” but following a compromise in summer 2023, the word “all” was dropped.

There is no guidance in the Act on what is meant by “reasonable steps” but you would expect this to include having clear policies in place, providing regular training to staff and calling out any inappropriate behaviour and acting on it.

The Equality and Human Rights Commission (EHRC) published guidance in 2020 on sexual harassment at work and that included details of best practice for effective prevention. In addition to the points mentioned above, the EHRC recommended addressing risk factors in the workplace such as power imbalances and lack of diversity in the workforce.

The EHRC is due to issue updated guidance on sexual harassment to reflect the new duty and this will outline the steps employers will be required to take.

If an employer is found to be in breach of the new duty they could face an uplift in the compensation awarded by the Employment Tribunal of up to 25%. They could also face enforcement action by the ECHR.

Sexual harassment statistics

Some of the recent statistics highlight the scale of the issue. In 2021 a YouGov survey revealed that around 80% of young women (18-24) had experienced sexual harassment. In May 2023 a TUC report on sexual harassment polled more than 1,000 women and found that:

• 3 in 5 women have experienced sexual harassment, bullying or verbal abuse at work
• This rises to almost 2 in 3 women aged 25 to 34
• 2 in 5 women have experienced at least three incidents of sexual harassment
• Most victims don’t report it for fear of not being believed, damaging their working relationships and career prospects

A number of employers are updating their policies and rolling out training to employees try to address the issue.

The introduction of the new duty also comes on the back of some updated guidance issued by regulatory bodies such as the SRA which updated their guidance on sexual misconduct last year and in August this year the GMC announced that it would be updating Good Medical Practice Guidance to address, for the first time, the sexual harassment of colleagues.

As well as the new duty on employers to prevent sexual harassment, 2024 may also see a new Government. If the Labour Party is elected we can expect other developments in this area. At the Labour Party conference in October, Marina Wheeler KC, employment and human rights lawyer was announced as Labour’s adviser on how to make it easier for workers to blow the whistle on bullying, harassment, and discrimination at work.