Employers’ legal duty for sexual harassment prevention

Sexual harassment is a serious issue that can harm your employees' wellbeing, productivity, and trust in your business. And as an employer in the UK, it’s your legal and moral responsibility to create a safe, respectful, and inclusive working environment.

With the Worker Protection (Amendment of Equality Act 2010) Act 2023 coming into force on 26th October 2024, your responsibilities to prevent sexual harassment in the workplace have been expanded.

This new law, alongside the updated guidance from the Equality and Human Rights Commission (EHRC), places a greater emphasis on your preventive duty to protect employees from harassment.

The 2023 amendments introduce a new obligation to prevent third-party harassment and allow employees to bring claims if an employer fails to fulfil their preventive duties. Understanding these changes and how to comply with the EHRC’s updated guidance is crucial for creating a safe and respectful work environment.

That’s why we’re going to take you through the guidance and your legal responsibilities, so you can be confident that your business remains on the right side of the law.

Know your legal obligation to prevent sexual harassment

The Equality Act 2010 places a duty on you to protect your employees from sexual harassment. Under this legislation, sexual harassment is defined as unwanted behaviour of a sexual nature that violates a person's dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment.

For examples of sexual harassment in the workplace, see what is considered sexual harassment? 

The Worker Protection Act 2023 amends the Equality Act 2010, strengthening your duty to take reasonable steps to prevent sexual harassment, whether it comes from colleagues, managers, or third parties like customers or clients.

Failure to prevent harassment can lead to tribunal claims, reputational damage, and fines. So, you need to understand the law thoroughly and make sure your workplace complies with it.

Key changes to the law include:

Proactive duty to prevent harassment

You must actively take reasonable steps to prevent sexual harassment in the workplace. A failure to do so could result in tribunal claims, even if no specific incident has been reported.

Liability for third-party harassment

You are now liable for harassment by third parties, such as clients, customers, or suppliers, if reasonable preventative measures weren’t taken.

Financial penalties for failure

Employment tribunals will now have the power to increase any compensation awarded to an employee by up to 25%, if you are found to have breached your duty to prevent harassment.

These changes mean that you must be more vigilant, ensuring that your anti-harassment measures are not just reactive but actively focused on prevention. If you need immediate help with these changes it’s best to contact an employment law advice line, like BrightAdvice.

Now, we’ve covered your legal responsibilities, let’s take a look at the reasonable steps you can take to ensure compliance.

Implement a strong anti-harassment policy

To comply with both the Worker Protection Act 2023 and EHRC guidance, you should have a clear and comprehensive anti-harassment policy in place.

This policy should outline:

• The definition of sexual harassment, including examples of both verbal and non-verbal conduct.

• A clear zero-tolerance stance towards all forms of harassment, including from third parties.

• The procedures for employees to report incidents of harassment confidentially.

• The steps you will take to investigate complaints and discipline offenders, including third-party harassment.

The EHRC advises that policies must be regularly reviewed and communicated clearly to all employees. In particular, it should be made clear that harassment by customers or clients will not be tolerated, and employees should be encouraged to report it without fear of retaliation.

Follow the EHRC’s preventative guidance

The EHRC has issued detailed guidance on the steps employers should take to meet their obligations under the Worker Protection Act 2023.

These guidelines emphasise a preventative approach to workplace harassment and outline specific measures, including:

Conducting risk assessments

You should regularly assess the risk of harassment in your workplace, particularly in customer-facing roles or sectors where harassment is more likely.

Providing training

It’s advisable to provide regular and comprehensive training for all staff, including managers, on what constitutes sexual harassment and how to prevent it.

Just remember, that training should be refreshed regularly, ensuring that all employees are aware of their rights and the procedures for reporting harassment.

Monitoring

Regularly monitor the effectiveness of your policies and procedures by conducting employee surveys, analysing HR data, and reviewing complaints to identify patterns or areas for improvement.

By following this guidance, you can show that you are taking reasonable steps to prevent harassment, which can protect you from liability in tribunal cases.

Protect against third-party harassment

One of the key changes in the Worker Protection Act 2023 is the inclusion of liability for third-party harassment. As an employer, you must take reasonable steps to protect employees from harassment by non-employees, such as clients, customers, and suppliers.

To do this:

• Include third-party harassment in your anti-harassment policy.

• Train staff on how to deal with harassment from third parties and how to report it.

• Consider adding provisions to client or supplier contracts that outline your anti-harassment expectations.

• Put in place measures that allow employees to avoid potentially harmful situations, such as rotating shifts or relocating workspaces if a customer is known to behave inappropriately.

The EHRC advises that you should take action as soon as you are aware of any risk of third-party harassment, even if a specific incident has not yet occurred.

Ensure accessible and confidential reporting mechanisms

To effectively prevent and respond to harassment, employees must feel comfortable reporting incidents. You should have multiple reporting channels available, such as through HR, line managers, or anonymous reporting systems.

The EHRC recommends:

• Confidentiality: Assure employees that reports will be handled confidentially and without retaliation.

• Clarity: Make sure employees know exactly how to report harassment, whether it’s from colleagues or third parties.

• Support systems: Provide access to support, such as counselling or employee assistance programmes, for those affected by harassment. for those affected by harassment.

Investigate and act swiftly

When harassment is reported, the Worker Protection Act 2023 mandates that employers take swift and effective action to address it. You should ensure that all complaints are investigated thoroughly, impartially, and with urgency.

Key steps include:

• Impartial investigations: Appoint an independent investigator where necessary, especially for sensitive or complex cases.

• Appropriate action: Take disciplinary action where required and consider the impact of third-party harassment. This may include barring problematic customers from the premises or taking legal action if necessary.

• Follow-up: Check in with affected employees after the investigation to ensure that they feel supported and that the issue has been resolved.

Foster an inclusive and respectful workplace culture

One of the most effective ways to prevent sexual harassment is by promoting a culture of respect and inclusion. Employees should understand that your workplace does not tolerate any form of harassment.

Steps to achieve this include:

• Leading by example: Senior management should model respectful behaviour, demonstrating that harassment will not be tolerated.

• Encouraging bystander intervention: Train employees to intervene safely or report harassment when they witness it, reinforcing a collective responsibility.

• Promoting gender equality: Challenge stereotypes and unconscious biases that can contribute to a hostile environment.

Regularly review and update your policies

Finally, preventing harassment is an ongoing process. You should review your anti-harassment policies and procedures regularly; especially as new guidance is issued by the EHRC.

Conduct regular risk assessments, update training materials, and monitor the effectiveness of your prevention efforts through employee feedback and HR data.

Get help preventing sexual harassment in your workplace

As an employer, complying with the Worker Protection Act 2023 and EHRC guidance requires you to take proactive and meaningful steps to prevent sexual harassment.

By implementing robust policies, providing training, and fostering a culture of respect, you can ensure that you’re taking reasonable steps to prevent sexual harassment. Plus, your workplace remains safe and supportive for all employees.

And if you need help with any of that BrightHR is here for you.

From our 24/7 HR and employment law advice to HR document library with customisable harassment policies. And the learning management system, built into our all-in-one HR software. You can get the help you need whenever you need it.