Preventing Sexual Harassment – The Guidance

The new positive duty on employers to take reasonable steps to prevent sexual harassment in the workplace came into force over the weekend (26th October 2024) through the Worker Protection (Amendment of Equality Act 2010) Act 2023. Previously there was no proactive legal obligation on employers to take steps to prevent sexual harassment at work.

Following consultation, the Equality and Human Rights Commission has published its amended technical guidance on preventing workplace sexual harassment.

Some key points to take note of from the guidance:

  • An employer is unlikely to be able to comply with the preventative duty unless they carry out a risk assessment.
  • It had been a matter for debate whether the new preventative duty was the same as the reasonable steps defence for harassment. The updated guidance states that it is different – being a “separate positive legal duty that requires employers to take reasonable steps to prevent sexual harassment of their workers”.
  • The preventative duty only applies to sexual harassment. It does not cover harassment related to a protected characteristic (including sex), nor does it apply to less favourable treatment for rejecting or submitting to unwanted conduct.
  • Whether or not an employer has taken reasonable steps to prevent sexual harassment is an objective test, and will depend on the facts and circumstances of each situation.
  • A worker cannot bring a stand-alone claim in the employment tribunal for third party harassment. However, the guidance makes it clear that the preventative duty does extend to requiring employers to take reasonable steps to prevent sexual harassment of workers by third parties, such as clients and customers.

Baroness Kishwer Falkner, Chairwoman of the Equality and Human Rights Commission, said:

“Sexual harassment continues to be widespread and often under-reported. Everyone has a right to feel safe and supported at work. The new preventative duty coming into force on 26 October aims to improve workplace cultures by requiring employers to proactively protect their workers from sexual harassment. Employers will need to take reasonable steps to safeguard their workers. We have updated our guidance to ensure they understand their obligations and the kinds of steps they can take. We will be monitoring compliance with the new duty and will not hesitate to take enforcement action where necessary.”

Full guidance: https://www.equalityhumanrights.com/sexual-harassment-and-harassment-work-technical-guidance

Short 8-step guide for employers: https://www.equalityhumanrights.com/employer-8-step-guide-preventing-sexual-harassment-work

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