The new duty to prevent sexual harassment came into force on 26 October 2024, marking a significant change to the law relating to sexual harassment. The new duty requires employers to take proactive steps to protect employees and there are consequences for those that don’t do enough.

So, what exactly is the new duty, and what can HR teams do to comply with it? Michelle Hobbs, Managing Associate at Stevens & Bolton, digs deeper…

What is the new duty?

The duty requires employers to take “reasonable steps” to prevent sexual harassment of their employees in the course of their employment by colleagues and third parties.

Sexual harassment is unwanted conduct of a sexual nature which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.

The duty will extend beyond the workplace to most work-related events such as work-related social or networking events and international trips. Employers must also take steps to prevent sexual harassment by third parties such as customers, suppliers, contractors and consultant members of the public.

What are the risks for employers?  

Employees cannot bring a standalone claim for breach of the duty. However, where an employee brings a claim for sexual harassment, the employment tribunal can award an uplift of up to 25% to any compensation awarded for discrimination where it finds that the duty has been breached.

The Equality and Human Rights Commission (EHRC) has enforcement powers. These range from investigative powers to implementing action plans to prevent sexual harassment, with a power to issue unlimited fines for non-compliance with such plans.

Employers will also be acutely aware of the reputational damage associated with allegations of sexual harassment and the mental health impact on employees who experience it, which often translates into employees taking significant time off work.

How can the risks be reduced?

Employers need to take “reasonable steps” to prevent sexual harassment, though the legislation does not specify what “reasonable steps” are. These will vary based on the employer’s size, resources, the nature of the working environment and the sector within which the business operates. However, working with their HR teams all employers can implement certain measures to mitigate the risk of non-compliance.

Risk Assessments

Comprehensive risk assessments should be carried out to identify where the risks of sexual harassment arise, and action should be taken to reduce or eliminate these risks.

Practically, this involves assessing the risks associated with daily work practices like lone working, late working, customer or client interactions, and third-party dealings, and implementing measures to mitigate these risks. Employers should consider risks associated with work-related events and those specific to their industry or sector.

Alcohol can be a significant risk factor at social or client events and employers should consider what steps can be taken to mitigate these risks. Whilst this doesn’t call for an outright ban on alcohol at work events, employers should consider if an open bar is a risk too far.

Policies

Many employers will already have anti-harassment policies in place. However, it is strongly recommended that employers have a standalone sexual harassment policy in place, too.

Training

Employers should provide mandatory sexual harassment training to ensure employees understand what sexual harassment is, what to do if they experience or witness it and how to report it. Specific training should be provided to managers on how to spot and prevent sexual harassment in their teams.

Training should be provided as part of the induction process and at regular intervals throughout employment, including in advance of any events that may pose a higher risk. Training records should be kept and regularly reviewed to ensure all employees complete the training.

Reporting and complaints procedures

Despite best efforts, sexual harassment will not be completely preventable. Therefore, it is imperative that businesses have clear reporting and complaints procedures in place for dealing with complaints of sexual harassment.

Complaints should be thoroughly and promptly investigated, whilst maintaining confidentiality so far as possible. Support should be provided to all those involved in the investigation, including the complainant and the accused. Appropriate action should be taken against those found to have committed any acts of sexual harassment, which could include disciplinary.

Monitoring and review

Employers should have systems in place for monitoring and reviewing complaints to identify trends and learning points. This will help identify and minimise future risks. Policies and risk assessments should be continually reviewed and updated to take account of any learnings to ensure they stay “fit for purpose”.

Acting now is key

The duty to prevent sexual harassment places a heavy burden on employers and their HR teams, with non-compliance leading to significant financial and reputational risks. However, taking the necessary steps to comply with the duty also offers substantial benefits which should not be overlooked, including improved employee wellbeing, engagement and attendance, and reduced staff turnover. Additionally, the reputational benefits should not be underestimated, as these can make it easier to attract high-quality clients and talent. Clearly, then, there is also a positive business case for complying with the duty, too. Amid this multitude of risks and benefits with which HR teams now have to grapple, one thing is for sure, though – it is essential that businesses start preparing now for this duty. Those that do not, may find they are soon left behind by this sea change.