New duty on employers to prevent sexual harassment

October 25 2024 - Katherine Flower, partner in the Employment team at law firm Burges Salmon, comments:

"The duty is an ongoing one so compliance will not be a one-off process. Regular assessment of possible risks, taking steps where incidents of sexual harassment have happened and considering whether additional steps are needed to comply with the duty will all form part of an effective approach to preventing sexual harassment.

"There is no prescribed list of reasonable steps. Whether reasonable steps have been taken will be an objective test and will depend on the facts and circumstances of each situation. This means that reasonable steps will vary from employer to employer. A step may be reasonable, even if it would not have prevented a particular act of sexual harassment.

"While a worker cannot bring a standalone claim if their employer fails to take reasonable steps to prevent sexual harassment, there remain important consequences. Where a worker successfully brings an employment tribunal claim for harassment involving sexual harassment, compensation awarded could be uplifted by up to 25% if the tribunal finds that the employer failed to take reasonable steps. The uplift can be applied to all compensation awarded to the worker under the Equality Act, not just to the compensation awarded for the sexual harassment itself. This could result in a substantial increase. In addition, the Equality and Human Rights Commission can take enforcement action against an employer who fails to take reasonable steps. These enforcement powers apply whether or not an incident of sexual harassment has taken place.

"In failing to comply with the new duty, there is also, of course, the additional risk of reputational fallout. In a tough and competitive economic climate, how your organisation is perceived by the world at large is key. For employers operating in regulated sectors, reputational risk weighs particularly heavily, and there are additional considerations for such employers to take into account based on the regulatory standards to which they are subject.

"The new duty imposes significant obligations on employers. Organisations with a known issue of sexual harassment may decide to use the new duty as an opportunity to effect change in their organisation's culture and will, therefore, want to invest significant time and resource in their risk assessment, staff engagement, action plan and consequent steps. However other organisations who are confident that they have a healthier workplace culture may face lower risks and can respond accordingly."

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