Preventing sexual harassment: Are you doing enough?

As of 26 October 2024, employers in the UK are under a duty to take reasonable steps to prevent sexual harassment of their employees. If an employer fails to do so, and an employee succeeds in a claim of sexual harassment, then compensation will be increased by up to 25%.

Also, regardless of whether any sexual harassment claim is brought, the duty is enforceable by the Equality and Human Rights Commission (EHRC) which may require employers to prepare and develop an action plan. The EHRC has published revised technical guidance on sexual harassment and harassment at work, as well as an eight-step guide on preventing sexual harassment, which set out the steps employers should take to comply with the duty.

The current duty is to take "reasonable steps". The UK Government plans to strengthen this by requiring employers to take "all reasonable steps" to prevent workplace sexual harassment. However, the change is not expected to take place until 2026 at the earliest.

The preventative duty includes an obligation to take reasonable steps to prevent employees from sexual harassment by third parties, such as customers, clients, investors or suppliers.  Employers must therefore consider the extent to which employees may be at risk of sexual harassment by such third parties and take steps to prevent this.

Under the current law, it is possible for employers to be liable for harassment of their staff by third parties, but this is not straightforward. The UK Government plans to introduce a specific rule that would mean employers are liable for third party harassment unless they take all reasonable steps to prevent it. This would apply to all forms of harassment, not just sexual harassment, but is not expected to be in force until 2026 at the earliest.

There are various steps employers should consider taking (if they are not already doing so) to comply with the duty:

Risk assessment: Employers must carry out a risk assessment to determine the risk factors relevant to their workforce and working environment, and take steps to minimise those risks. This should be reviewed regularly to assess the effectiveness of measures taken and identify any new or additional risks.

Effective policies: Employers should ensure that their harassment policies cover sexual harassment in sufficient detail or consider a separate sexual harassment policy. The policy should provide clear examples of sexual harassment relevant to the employer's workplace.

Training: All staff should be trained regularly on what sexual harassment is and what to do if they experience or witness it. Managers should be trained in "speak up" and "listen up" processes to ensure they are equipped to handle complaints (including informal complaints). 

Encouraging reporting: Employers should explain to staff how to report sexual harassment. "Speak up" or whistleblowing policies, as well as grievance procedures, should make it clear that employees can use them to raise these issues. Employers should also consider regular one-to-ones and staff surveys, as well as having open door policies.

Investigating complaints: Complaints should be invested and resolved promptly and thoroughly, and a centralised record of all complaints should be kept (to identify trends).

Third party arrangements: Policies and training should cover third party harassment and what to do if employees experience or witness it. Employers should also consider how anti-harassment policies could be communicated to third parties and/or whether provisions about harassment of staff could be included in client and supplier contracts.